DLF ARGUMENT ON AMAZON’S LIABILITY FOR SALES OF DEFECTIVE PRODUCTS TUESDAY FEBRUARY 23

FOR IMMEDIATE RELEASE
CALIFORNIA COURT OF APPEALS TO HEAR ARGUMENT ON AMAZON’S LIABILITY FOR SALES OF DEFECTIVE PRODUCTS WHICH INJURE AMAZON CUSTOMERS TUESDAY FEBRUARY 23

San Francisco – February 22, 2021 – The California Court of Appeals will hear oral argument on Tuesday, February 23rd, 2021, on the question of whether Amazon can be held liable for injuries caused by defective products made by “3rd Party Sellers” who list and sell their products on Amazon and ship direct to customers.  

Kisha Loomis was burned and her house caught fire when a hoverboard she bought for her son for Christmas 2015 blew up in her home. The hoverboard was manufactured in China by a Chinese company “Smileto” and sold under the alias “TurnUpUp” on Amazon as a Smart Balance Wheel. Smileto sold over 380,000 hoverboards on Amazon in the 4th Quarter leading up to Christmas. On November 28, 2015, Ms. Loomis bought the hoverboard on Amazon who placed the order with Smileto/TurnUpUp which directly shipped the product to Ms. Loomis who received it on December 16, 2015.  Amazon collected and processed payment receiving 15% of the $370.00 sales price ($55.00) plus a listing fee and other related fees.  

In November 2015, Amazon became aware of hoverboards spontaneously bursting into white-hot flames. On November 20, 2015, Costco had recalled the same Smart Balance Wheel product. On December 4th, 2015, Amazon UK pulled all hoverboard listings, including Smileto’s, down because of fire danger. On December 10, 2015, Amazon acknowledged it was aware of at least 17 reports of hoverboards sold on Amazon spontaneously bursting into flames and stated they were concerned that there were fire safety issues from “Chinese hoverboards.” Only then did the Amazon “Product Safety Team” take down tens of thousands of hoverboard listings. AMAZON did not inform Ms. Loomis about the danger associated with the hoverboard she had purchased. Amazon did not tell the sellers to stop shipping the hoverboards already purchased and the dangerous hoverboard was shipped and arrived on December 16, 2015 and was placed under the Loomis family’s tree. It was opened on December 25th and, on December 31st, while plugged into an outlet, it spontaneously burst into intense, flare-like flames. Ms. Loomis was burned, and her home was heavily damaged.  

The Chinese manufacturer had “gone out of business” and Amazon was sued as a retailer under California Law that holds manufacturers, distributors, retailers and others in the chain of marketing, sale, and distribution liable for damages caused by defective products they sell.

A Los Angeles Trial Court sided with Amazon saying it was not in the chain of distribution and not a seller of products but, instead, a platform where buyers and sellers are put together and, further, that they were protected by the Computer Decency Act, Section 230 as their posting was protected speech. 

Christopher Dolan, Appellant Loomis’ attorney, stated, “This is one of the most important cases before the courts.  A mom-and-pop toy store which sold the same product would be held liable as a retailer but Amazon, the biggest online retailer with 46% of online sales, valued at over a trillion dollars, will go scot-free?  This is a crime. First, they drive retailers out of business and then claim that they can’t be held liable as a retailer even though they control the whole transaction. As they take over the world of sales, they must also assume the responsibility those brick and mortar stores they put out of business had.  Let’s face it, Amazon is selling products, making a huge profit, and not making an effort to assure that the foreign and domestic goods they sell are safe. They want all of the money but none of the responsibility. They have to be stopped.”

The 1:00 p.m. hearing may be viewed remotely at https://primetime.bluejeans.com/a2m/live-event/yxpekfyh. 

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If You See Something, Say Something

Written By: Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jim C. in Bernal Heights who asks: I’m currently working on a job site in the city. We are building a subterranean parking garage and we use heavy equipment every day. The guy that drives the excavator is not the most reliable and occasionally he doesn’t show up to work. On these occasions, my supervisor, the foreman, who I am fairly certain has not been trained on the equipment, hops in and operates it in his place. I have also noticed that the lights and the back-up alarm aren’t working. The foreman almost backed up into the cement mixer yesterday, which would have been disastrous. Having worked on job sites for over a decade, I know this isn’t safe, but I am afraid I’ll be fired if I bring this up to the foreman’s supervisor. No accidents have occurred yet, but I’m worried. How should I address these safety risks? 

 

Dear Jim C.: Thank you for your question, Jim. You are right to be concerned. Work environments, especially construction sites, are often rife with safety hazards that must be closely monitored. Certainly, if your foreman is operating heavy equipment and is not trained on the equipment, this not only exposes your company to liability should anything go wrong, but also poses a significant risk to you and others on the job site. This, compounded with some of the excavator controls not operating properly, causes serious safety risks. There are a number of steps you can take to ensure the safety issues are addressed.  

The key is your initial complaint must be either verbal or written to someone in a position of authority, preferably the foreman’s supervisor, and must be framed in the context of work safety. If you told the foreman supervisor, for instance, that you thought it was unprofessional and unfair that the person actually trained on the excavator was permitted to skip work without repercussions, this would not be enough in itself to alert your employer you are making a workplace safety complaint. The best course of action is to put your concerns in writing, preferably in an email which affixes a date and time stamp, and share them with the foreman’s supervisor.  Be specific, citing examples of the unsafe conditions or conduct you observed and when you observed it.  

You may have some further hesitancy, as you aren’t positive the foreman isn’t trained on the excavator. Don’t let this deter you from making a complaint if you have reason to believe he is not trained or if it appears he is operating the excavator in an unsafe manner (i.e. using heavy equipment without functioning back-up warnings, failing to wear proper safety equipment or follow proper protocols concerning the equipment.) You may not have all the information necessary to make a definitive determination whether or not the conduct is actually safe, but the law encourages employees like yourself to speak up if you have reason to believe it is unsafe. In other words, if you see something, say something. 

While construction zones are typically the most common work environment where safety hazards arise, the law on unsafe work conditions is certainly not confined to any one kind work environment. Unsafe conditions can arise in many different contexts in many different environments. Unsafe conditions can range from poor lighting conditions in a staff parking lot located in a high crime area, to exposure to toxic chemicals in a confined space, to a co-worker displaying violent tendencies or bringing a firearm to work.

Your fear of making complaints is understood. If you are hesitant to tell your employer, you have the option to make an anonymous complaint to Cal/OSHA. They are the government entity tasked with making sure workplace safety and health regulations are properly observed.

However, California law protects workers who complain of safety issues. Under the California Labor Code, employees who come forward and voice good faith safety concerns about their workplace are protected from retaliation. Specifically, CA Labor Code §6310 prohibits an employer from discharging or otherwise discriminating against any employee because the employee has made any oral or written complaint about workplace safety. Three elements are required to support a retaliation claim for raising workplace safety complaints:

(1) the employee must have made complaints about workplace safety to his employer;

(2) the employer must have then subjected him to an adverse employment action; and

(3) there must be a causal link between the workplace safety complaint and the employer’s action. 

Once you make the complaint, if you find that you are suddenly being treated differently, such as your hours being cut, you are disciplined for minor issues, or you are treated with aggression or hostility, you may be experiencing retaliation related to your complaint. This is prohibited by law and you should report the retaliation to the foreman supervisor immediately. If you are experiencing harassment or have suffered a demotion or termination following a workplace safety complaint, you should reach out to an attorney for assistance as soon as possible. 

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No Shoes, No Shirt, No Mask = No Service

Written By: Christopher Dolan and Lourdes De Armas

Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.”  This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm as is the phrase.

Similar reactions were heard in the ’80 when California enacted a variety of laws. In 1984, California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that motorcycle riders under age 18 must wear helmets. 

Even in the face of scientific studies showing that seatbelt and helmets save lives, there was the outcry of “the government” interfering with your lives.

Still if you are driving a car and have no proof of insurance, you are not exposing anyone to anything lethal. If someone passes you riding a motorcycle without a helmet, their risk exposure is greater than yours- the same for no wearing a seatbelt.

Now, a whole lifetime later, we buckle up as soon as we sit down in a vehicle, make sure that our kids are wearing helmets, and do not dare drive without insurance. We would not even think about walking into a store with bare feet and no shirt on. All of these have become second nature. No personal liberties have been affected and no one has been hurt by following the rules.

Until the pandemic, we gave little thought to “No shirt, no shoes, no service.” The same should be for masks. Businesses have the right to refuse service to those that refuse to enter without masks. Although it is understandable that culturally, the U.S. wasn’t really prepared to wear masks, unlike some countries in Asia where the practice is more common- it has been almost a year since the pandemic paralyzed the nation and wearing a mask should be second nature. Yet, we are still having this debate.

Mask compliance has become a political issue instead of a health issue despite the evidence. “This is a life-and-death issue. Masks, physical distance and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine”, according to Dr. David Abrams, NYU School of Global Public Health. 

Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization recommend masks for the general public. Keeping in line with the experts, California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.

Analysis of data from Johns Hopkins University, California ranked No. 1 among the states where coronavirus was spreading the fastest on a per-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out “There’s a certain bravado of being angry and defying requirements to wear a mask.”

  • “Costco Karen,” for instance, staged a sit-in in a Costco entrance after she refused to wear a mask, yelling “I am an American … I have rights.”
  • An unruly crew marched through Target yelling “Take off your masks, we are not going to take it anymore.”
  • “Burn the Mask” protestors blocked the entrance of Trader Joe’s in Fresno to causing the store to close early.
  • A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a “mask Nazi.”
  • In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to be barricade themselves inside stores to keep out protesters.

Despite the protestations, wearing a mask just like wearing seat belts, shoes and a shirt, does not violate your rights. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government. 

To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned.  The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” 

The case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others.

For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make “No Shirt, No Shoes, No Masks, No Service” the norm in California.

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A Closer Look at California’s New Laws for 2021

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

 Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage 

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties. 

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

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Safety Measures for Cyclists and Truck Drivers

Written By: Christopher B. Dolan and Emile A. Davis 

This week’s question comes from William B. in Berkeley who asks: On the news I heard about a truck that collided with a group of cyclists. It was horrendous. Some cyclists were terribly injured and one even died. I realize, as a cyclist, how vulnerable we cyclists are, even when we are being cautious and aware. What protections do we have if a truck takes us out? Anything?

Dear William: Thank you for this important question about trucks, cycle safety and protections. As a cyclist myself, and having represented hundreds of cyclists, I am all too aware of the dangers caused by automobiles in general and the particular issues raised by large trucks. To answer your question, I look to three categories of protection:

1) steps that can be taken, as a cyclist, to avoid accidents with trucks;

2) rules truck drivers must follow to ensure they are alert and aware; and, finally, if the first two fail,

3) remedies and inquiries to seek justice after a collision.

Steps that Cyclists Can Take to Avoid Accidents

The sad truth is that many motorists simply do not see cyclists. It is not merely inattention, but a neurologic phenomenon sometimes called, “filling in.”  People’s brains are continuously anticipating what we will see. If an object is obstructed, the brain simply, “fills in,” the missing information with its best guess. There are several steps a cyclist can take to make sure they are actually seen. The easiest is to use anti-camouflage; wear bright colors and reflective gear, have lights and reflectors on a bicycle in order to stand out from the environment and draw attention to yourself. That way the cyclist is seen and the driver does not just, “fill in,” the scenery. 

You hit upon perhaps the most important other steps that can be taken – actively being cautious and using situational awareness to know when danger is increasing. These are key to a cyclist’s safety in relation to not only trucks, but traffic in general as well as roadway defects.

Department of Transportation Rules to Keep Truck Drivers Safe and Alert

Often, thankfully, long haul truck drivers are some of the best and most experienced drivers on the road. Additionally truck drivers are subject to many specific rules and regulations designed to make sure they are alert and driving safely. The Federal Department of Transportation, through the FMCSA (Federal Motor Carrier Safety Administration) has regulatory authority over truck drivers. They have a number of safety-based regulations affecting property-carrying vehicles. Initially, the driver must be at least 21 years of age, possess a commercial license and complete a road test. Any driver who has been convicted of a DUI or transporting drugs would be disqualified from employment in this field.

Once a driver is hired, they must record and certify in a log their driving start and end times as well as days off to demonstrate that they have followed basic safety requirements such as:  

  1. A driver must have had 10 hours off duty before beginning a shift.
  2. A driver may not drive after a period of 14 consecutive hours until he has had 10 hours off duty.
  3. A driver may drive for a total of 11 hours out of this period of 14 consecutive hours.
  4. A driver may not be on duty for a period of more than 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

The requirements are even more stringent if the driver is transporting passengers. A complete list of DOT regulations can be found at: https://www.fmcsa.dot.gov/regulations/title49/b/5/3

Recovery if a Collision Does Occur

Unfortunately the above precautions are not always enough and a cyclist is injured by a truck. When that occurs the law provides that a responsible party pay for the damages suffered by the person injured.  The law anticipates that trucks have the potential to cause greater harm than typical automobiles. Insurance coverage for trucks, unlike the relatively small insurance policies required by automobiles, are more substantial. Large commercial trucks transporting goods are required to carry a minimum of $750,000 in available insurance. Companies are often also encouraged to carry additional Commercial General Liability insurance to protect their assets, and individuals injured because of the potential trucks have for creating very serious injury, such as the collision that prompted you to write.

To obtain justice for a person injured by a truck a good lawyer will confirm all available insurance policies. They will also investigate to determine if the DOT safety regulations were properly followed.  Where there was a failure, it is important to determine if it was merely a failure of the truck driver to do the right thing, or, whether the employer of the driver set expectations or policies that required a driver to push the limits of the regulations and to drive unsafely. Similarly, a company that employs truck drivers may not properly screen or train drivers appropriately for the type of driving they are tasked to do. Employer failures of this type can open the employer up to the potential liability to compensate an injured person beyond the limits of an insurance policy.

As with many activities, if everyone does their part to avoid accidents, they become far less likely. However, they do still occur. If you or someone you know is injured by a truck driver, while cycling or otherwise, consult an attorney such as those at the Dolan Law Firm who are experienced in that area of law.

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What You Need to Know About the 25th Amendment

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

This week’s question comes from Donald in Washington, D.C. who asks: Following the January 6th riots in Washington D.C and the storming and occupation of the Capitol Building by domestic terrorists egged on by President Trump, I’m hearing many people call for the invocation of the 25th Amendment. What is it, what does it do, and how does it work?

Dear Donald: Thank you for your timely question. The 25th Amendment to the Constitution of the United States, commonly referred to as the Disability Clause, provides a framework to remove a sitting President from office before the end of their term, either willingly or unwillingly. It defines when and how the Vice President becomes President if a sitting President dies while in office, resigns or is removed from office. 

The Amendment was drafted in 1965 in the wake of the assassination of President John F. Kennedy. Following Kennedy’s assassination, Lyndon B. Johnson was sworn in as the next President on Air Force One in Dallas, Texas. However, there needed to be a more formal set of Constitutional guidelines in place to govern such circumstances. The draft amendment was submitted to the states by Congress for approval and was formally adopted as an amendment to the Constitution on February 10, 1967.

There are four sections within the 25th Amendment. The first three sections address what is to happen in the case of the President’s death, or a resignation or incapacitation which the President acknowledges. The fourth section addresses the incapacitation of the President that the President is unwilling or unable to acknowledge, essentially removing a President from office against his will. It would seem that for purposes of this discussion it is the fourth section that applies most directly to current circumstances. The bipartisan allegation has been made that President Trump purposefully instigated his supporters to violently take over the Capitol Building in Washington, D.C., that he aided and abetted a terrorist attack on the United States, that he encouraged it while it was happening, and that this is evidence of his unfitness for office. Many people are saying that he is a clear and present danger to the United States and must be removed from office immediately.

The fourth section of the 25th Amendment provides the framework and process by which this could be accomplished. Theoretically the fourth section allows the Vice President, along with a simple majority of members of the President’s Cabinet (Secretary of State, Secretary of Defense, Secretary of Labor, etc.) to make the determination on their own that the sitting President is in some manner disabled to the point of being no longer capable of performing the functions of the office in a competent manner. However, it is important to note that it has never been enacted against a sitting President’s will. There is no precedent in American history for what our nation currently faces: the possibility of removing a sitting President from office who is conscious, otherwise fully ambulatory and does not want to go.

The 25th Amendment has only been invoked a few times in our nation’s history. Most recently it was called upon for such a mundane thing as President George W. Bush being under sedation for a colonoscopy. The powers of the office, if not the title, were thereby transferred to then Vice President Dick Cheney for a few short hours. The 25th Amendment was NOT enacted, however, in 1981 following an assassination attempt on President Ronald Reagan, who was under sedation and incapacitated for a much longer period of time than one would be for a routine colonoscopy. President Reagan’s doctors later stated that the situation had most definitely called for the enactment of the 25th Amendment’s provisions for a period of several days.

It is also important to note that similarly with the concept of whether a sitting President can issue a self-pardon for federal crimes, the fourth section of the 25th Amendment, removing an otherwise healthy sitting President from office against his will, has never been tested in the courts. It simply never has been attempted. However, the fourth section of the Amendment DOES provide a Constitutional framework for doing so.

The first paragraph of Section Four reads as follows,

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

This single sentence provides for the Constitutional removal of the President of the United States of America from office against his will.

It would require what would essentially be a letter signed by Vice President Mike Pence and 11 or 12 members of the President’s Cabinet attesting under penalty of perjury that President Donald Trump is no longer capable of performing the duties of the Office of the President. They would deliver a copy to the Senate and a copy to House Speaker Nancy Pelosi. Thereafter Mike Pence would be immediately sworn in as Acting President, thus ending the Presidency of Donald. J. Trump. Regardless of whether or not the provisions of the 25th Amendment are enacted in these current circumstances, at noon on January 20th Joseph R. Biden and Kamala D. Harris will be sworn in as President and Vice President, respectively.

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An Interview with Super Lawyer Rising Star: Allison Stone

We had the opportunity to interview Allison Stone, our senior associate attorney from our Los Angeles office. Allison Stone is a top-rated civil litigation attorney practicing in catastrophic personal injury, wrongful death, government liability and premises liability in California. From 2017 to this year, Super Lawyers recognized Allison as a Rising Star among Southern California attorneys.

Allison Stone has been practicing as a plaintiff’s personal injury attorney since she graduated from Pepperdine University School of Law in May 2010. With a decade of litigation experience, Allison is committed to fighting for individuals injured due to the negligent and unlawful acts of others. 

—

Hi Allison, thank you for taking the time to speak to us. You were nominated as a Super Lawyer Rising Star for the 4th consecutive year. Tell us what this means to you? 

Thank you so much. It is truly an honor. I am very grateful to be recognized by my peers, particularly because there are so many extremely talented lawyers in California.

Your legal work has recovered more than $40 million in settlements and verdicts. Can you tell us more about this achievement? Does any case stand out for you?

I am very proud of my work and always strive to get the best possible results for my clients. I enjoy settling cases for my clients and bringing them a sense of closure. As a Rising Star, I believe I have much more to contribute and hope to continue to make a positive impact on my clients’ lives. 

You graduated from the University of California, Riverside with a B.A in Psychology and Law & Society. Did you always have plans to become an attorney? Who was your biggest inspiration? 

I did not always plan to become an attorney, but the legal field has always interested me.  My father, Neil, is a retired educator, my mother, Susan, is a Licensed Clinical Social Worker, and my late cousin, Josh, was a public defender. All of them worked hard to better the lives of others, which has always been a tremendous inspiration for me.

You played for UC Riverside’s Big West Division I soccer team and graduated magna cum laude. What was the key to achieve balance in a school and sports schedule? Can you share some ways of staying active now, especially with current COVID-19 restrictions.  

I think the keys to achieving balance, both as a Division I collegiate athlete and now professionally, are discipline, staying organized, and simply putting in the work.  I find that these principals have been beneficial for me to find some balance while still honoring all of my commitments.    

With COVID restrictions, my workouts are now all at home as opposed to my in-person classes, which I do miss. I have found some great online workout platforms and teachers including @corneliusjonesjr, and Dryp By Soha (@sohapanah), which I would describe as high-intensity yoga sculpt classes that I can’t recommend highly enough. I think staying active, especially now, is so important, for both our physical and mental health.

Because of COVID-19, many industries are changing the way they operate. How do you see the legal industry changing? 

Everyone has had to pivot this year, and we have transitioned to doing remote depositions, mediations, and court appearances. Of course, we are all very much looking forward to going back to in-person appearances. However, I think this year has taught us that there are a number of routine meetings, appearances and hearings that can continue to be done remotely and effectively, and will save valuable time and resources. 

What has been the best advice (given to you by someone), which you would like to pass on to law students?

The best advice for me was the simple truth– It requires a lot of dedication, but keep your head down and you will do great.  Find mentors whom you respect and learn as much as they are willing to share.

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Legal Protections for Employees During COVID-19

Written by: Christopher B. Dolan

Today’s question comes from Darlene in the Excelsior who asks: “I have been really scared during Covid about losing my job. For the last 2 years I have worked in a relatively small company, with 20 employees, and I have to have a surgery for a total knee replacement soon. I have delayed because of Covid but I can’t put it off much longer. My doctor told me that as soon as the number of Covid cases goes down I should be scheduled for surgery. My company has a lot of workers younger than I am, and I am afraid they may replace me with a younger person who doesn’t have health issues. I also have asthma and I have been very careful to socially distance myself. I am deemed an, “essential worker,” and don’t have the luxury of working from home. I don’t trust my company (in case you hadn’t picked up on that) and I know one of my co-workers had Covid and they didn’t tell us. I found out through his teammate. What are my rights to take time off for my knee surgery and what obligation does my employer have to tell me when someone gets sick with Covid?”

Dear Darlene: These are some very stressful times and with so many people unemployed, I can see why you would be concerned about your job and your right to seek health care, as well as want to know if you have been exposed to Covid. Starting with your need to take time for your knee replacement, I can say that the delay due to Covid has worked in your favor.  

Under the California Family Rights Act (CFRA), California’s version of the Family Medical Leave Act (FMLA), you would not have qualified for a job-protected medical leave for your knee surgery in 2020, but you will qualify in 2021. Currently, under CFRA if you have worked for an employer for 1250 hours or more during the last 12 months, you may take up to 12 weeks of unpaid leave (all at one time, or intermittently) for a serious health condition of yourself, your parents, children, spouse or registered domestic partner. CFRA leave doesn’t have to be taken all at once. An employee may take intermittent leave, if needed. Additionally, any parent may also take CFRA leave to bond with a newborn child. Prior to 2021, only employers with 50 or more employees within a 75 mile radius had to provide this leave. Starting January 2021, the law has changed (Fair Employment and Housing Code Section 12945.2) to require employers with 5 or more employees to grant CFRA (with certain limited exceptions) to a worker for themselves or a child, parent, grandparent, grandchild, sibling, spouse or domestic partner. Therefore, the law now has a much broader reach both in the number of employers who will be obligated to grant CFRA and the scope of the relationship to the employee, which has now been expanded to include grandparents, grandchildren and siblings. 

When possible, an employee must request CFRA leave within a reasonable period of time in advance of the anticipated leave. An employee, “shall,” make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer. In case of an emergency, no notice is required before taking leave, but a prompt request must be made to the employer as soon as possible.  An employer may require that an employee’s request for leave be supported by a certification issued by the health care provider of the individual requiring care. When CFRA leave is granted, the employer must continue to pay the employer’s share of their medical insurance, the employee is still obligated to pay the employees portion, and the employer must, upon granting of the leave, provide an employee with a guarantee of employment in the same or a comparable position upon return. An employer can have a policy that requires the employee to obtain certification from the employee’s health care provider that the employee is able to resume work, so long as that policy is applied uniformly.

As to the second issue raised in your question, regarding an employer’s obligation to notify you if a co-worker has been diagnosed with COVID, the Labor Code was amended to add Section 6409.6, requiring an employer, within one business day of receiving notice of potential exposure, to provide written notice to all employee and subcontractors who were on the same premises or worksite as an infected person that they may have been exposed. The employer must also provide all exposed employees with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave (CFRA), supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee. The employer must also notify the employees of the disinfection and safety plan the employer plans to implement and complete per the federal guidelines of the Center for Disease Control and Prevention. The law also prevents an employer from retaliating against an employee for disclosing a positive Covid test or an order to quarantine or isolate. This law expires on January 1, 2023.

If you feel that your rights have been violated, make sure to document it in a verifiable manner (email, memo, text, etc.) and contact a good trial lawyer with expertise in employment cases for a consultation.  Our office has an employment law department that focuses on employee rights. 

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Workers’ Compensation Could Cover COVID-19 exposure

This week’s question comes from Brenna in San Leandro who asks: My employer still isn’t taking COVID-19 seriously! We have the most basic safety measures at our office, and people take their masks off all the time, regardless of where they are in the shared office space or other offices. My coworkers are posting pictures all over social media of themselves out at bars and in large groups, without wearing any masks; they aren’t social distancing. I think people are faking their temperatures when they come in to work, and then they are telling people they, “just have a stomach bug.” I’m terrified of getting sick.  My family and I are taking every precaution we can. My kids are home schooling, we wear masks, and have stayed away from large crowds, even though it meant missing our traditional Thanksgiving with all my brothers and sister’s families. This is not to mention all the summertime activities we did not engage in this year. I’m limiting my exposure opportunities and I’m washing my hands regularly, so if I get sick I’m positive it’ll have come from my office. Would my employer be held responsible? Am I covered by workers compensation?

Dear Brenna: I’m so sorry to hear that despite all the evidence available and the incredible loss of life our country has suffered you are working in an environment where your coworkers are not taking the pandemic seriously. Recently there was a law signed by Governor Newsom that codified the executive order he issued back in May. It is called Senate Bill 1159 and it codifies the presumption that an employee’s illness related to the coronavirus is an occupational injury, and if particular criteria are satisfied, then the injured worker would be entitled to workers compensation benefits.  

There are specific categories of workers that this rule protects, which includes first responders and health care workers, but the coverage would also be triggered if there is an, “outbreak,” at an office. An, “outbreak,” is found if, within fourteen days, any of the following three scenarios are met:

1) if an employer has 100 employees or less, and four employees test positive,

2) if an employer has 100 employees or more, and four percent of the employees test positive, or

3) a place of employment is shut down by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection for COVID-19.

This law should encourage employers to comply with, and enforce the local health orders and guidelines appropriate to their office.  Any efforts the employer makes to protect its employees will be evidence the employer can introduce to counter the presumption that the illness an employee claims came from the workplace.  Each of their efforts will be a tool to use against an employees claim. The less the employer has done to protect its workers, the less the employer will have to argue the infection did not come from the workplace. If the standards are met, and the presumption has been triggered, the employer will bear the burden to prove the injury did not come from the office.

Workers, however, must make efforts at home to stay safe. The employee’s efforts will provide them with evidence that supports the presumption that the infection came from the office. So workers, such as yourself, should continue to make sure you are following the suggested safety measures, including wearing a mask, washing your hands, avoiding crowds and social distancing when you do have to go out. Taking these steps will be your evidence to contradict efforts made by the employer to claim the source of your infection is outside of the office.

If an employee becomes sick, they can request a workers compensation claim form from their workplace. Employers are required to give their employees the form. Here is a link with information on filing a claim form here.

However, feeling sick isn’t enough to qualify for these benefits. For this coverage to apply workers need to have their diagnosis confirmed by an approved Polymerase Chain Reaction (PCR) test. A PCR test confirms a current infection as opposed to an antibody test which shows the worker suffered a previous infection.  The test itself is looking for the presence of the viral RNA. If your doctor encourages you to self-quarantine and treat at home, keep in mind the absence of a test-based diagnosis may preclude your opportunity to make a claim for workers compensation benefits. If you believe your infection came from work and you would like the option of making a claim for these benefits, make sure you get a test approved by the United States Food and Drug Administration. Workers should keep copies of all their medical records to use in the claim process. Even if a worker’s illness does not meet the criteria to establish this presumption, it may be deemed related to their work if the worker can provide enough evidence of it.  

Despite having a potential compensation claim, instead I hope you stay healthy.

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Travel Refunds During COVID-19

Written By: Christopher B. Dolan and Aimee Kirby

This week’s question comes from Sylvia who asks: My family and I had some questions about refunds regarding our airline travel due to COVID-19 over the holidays. Every year my family travels to the east coast from the west coast to see my parents. Because the price tends to increase as it gets closer to the holidays, we bought tickets over a year in advance. We also do the same thing with summer vacation for the kids. Our June vacation with my children was reasonably easy to cancel. Now they are telling me I can’t get my money back, but I can re-book upto a year from the ticket without any service charges. This seems unfair since COVID-19 is so unpredictable. Instead of them holding our money back with conditions and hoping we can travel next year, do you know any way to force them to return my money?

Dear Sylvia: COVID-19 has changed the entire way the world and our community interact. At the beginning of the pandemic, many airlines were issuing full refunds because little was known about the virus or how someone could safely fly during these times. There is a concept in the law called “Force Majeure” when dealing with contracts. Essentially, Force Majeure means that one person cannot fulfill their obligations under the agreement because of unforeseeable circumstances. When the pandemic hit, many airlines realized that they had to rework how they did business, and those that traveled with the airlines would not be able to do so until they were able to understand their own health needs and status of infection. The concept of Force Majeure was used, often without knowing its name, by both the airlines and the travelers to cancel or reschedule thousands of flights.

Now that we know a little more about COVID-19, some people have decided that with the changes the airlines are making, they would like to travel. This change in the attitudes of some travelers, and the changes made by the airlines, have made seeking a refund increasingly difficult. Because different policies exist for various airlines, and because the wait times to talk to a representative are relatively high, many have contacted the Department of Transportation to resolve their ticket refund status.

At the beginning of the pandemic, the U.S. Department of Transportation obligated airlines to immediately provide a prompt refund to travelers with flights to, within, or from the United States if their flights were delayed or re-routed significantly to the virus. However, even at the beginning of the pandemic, many airlines were not issuing refunds and instead they were trying to rectify flight cancellations by re-routing passengers, issuing travel vouchers, or changing flight dates. According to U.S. Department of Transportation webpage, no further directives have been issued regarding cancellations due to COVID-19.

The first place for you to start is the airline with which you booked your flight – begin by researching and understanding their change and cancellation policy. Nearly every airline has made some modifications to their change and cancellation policy. Most airlines are not charging fees for cancellation or changing flights, and also refunding and extending miles if your flight was booked with miles. However, nearly all the airlines are not allowing a cash refund and instead offering a voucher that must be used in a certain amount of time from the date of cancellation. This is true, even for the airlines with no fee, and allowed easy cancellations and refunds before the pandemic. Some airlines are increasing the amount of the voucher and/or giving more miles or points to travel with to those that have had their flights changed on them, This is the airlines form of recognizing how difficult this decision is to make.

Sadly, you cannot sue in small claims to get your cash back like a simple auto accident. Depending on your purchase’s terms and conditions, where the ticket was purchased, and the ever-changing COVID-19 landscape, different laws apply. Depending on how you paid for the flight, the credit card company you used may or may not be willing to refund you the sums you are out given their policy regarding the COVID crisis. After researching your airline cancellation policy, I would contact your credit card company if the flight was not purchased on points or miles. It’s possible that your credit card company will be more flexible than the airlines in providing some refund.

If your situation involves a family member that has tested positive for the virus, and this affects your future travel (as in an elderly relative that will no longer be able to be seen in the near future), I would strongly urge you to gather whatever documents you have to support this fact and ask to speak to a manager at the airline(s) in question. They may look at this situation as different from the many other travelers who have had to or chosen to cancel plans to see their loved ones. 

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