Blog | Dolan Law Firm

Is a Trial the Same as An Arbitration?

Written By Chris Dolan and Carole Okolowicz

This week’s question comes from John from San Francisco, who asks: What is the difference between having a trial versus going to mediation?

Dear John,

There are many ways to resolve a legal dispute, whether a lawsuit is filed or not. Most people have heard of a trial in front of a jury because the media has popularized it. However, most cases do not go to trial. Experts have estimated that some 98% of all legal disputes resolve before trial. I will explain these options for resolving legal disputes: settlement, mediation, arbitration, and trial.

Informal Settlement Negotiations

Most cases resolve through settlement. Mediation is a method used to achieve a settlement. (More on that later.) Where criminal cases typically seek to put a person in jail, civil cases seek monetary compensation for the harm caused. Since the goal is for the suing person to get money if the person sued agrees to pay, there is no longer a need for the lawsuit. Lawyers often write a demand letter, which is a letter that lays out the known facts of the case, any evidence the plaintiff has in their possession (a police report, medical records, photos, employment records), and the legal reasons why a jury would award money should the case go to trial. Sometimes the two sides can work out a deal through informal communications like emails and phone calls. In these situations, the plaintiff will typically agree not to file a lawsuit concerning the matter and the defendant will agree to pay the agreed amount. Note that this is a voluntary settlement. Neither party is forced to pay; no party is forced to dismiss the case or agree to not sue. The parties decide to avoid litigation, or further litigation, by resolving the matter informally.

Mediation

If informal settlement negotiations are not possible, the parties may seek to resolve the matter through mediation. Mediation is a means to achieve a voluntary settlement. When parties agree to mediate, they hire a neutral person to help resolve the case. At an agreed-upon time and place (or remotely), the parties go into separate rooms and the neutral mediator talks separately to both sides. Many mediators are retired judges or seasoned litigators so they will often provide insights as to how a jury might think about certain aspects of the case. The mediator’s goal is to get both sides to agree on a settlement amount. As with informal settlement negotiations, each party typically writes a brief that, like a demand letter, lays out the facts, law, and evidence.

It is a common saying that a good mediation is one in which both sides leave unhappy. The plaintiff worries they could have gotten more; the defendant worries they paid too much. But the benefits of settling at mediation are great. As with settling through informal negotiations, the parties save on continued litigation costs, including the cost of a trial which can be very expensive. There is a cost associated with litigation. The mediator charges a fee and mediations can often take a whole day of your attorney’s time. But the cost is much less than trial. Further, trials are risky, and the outcome can be hard to predict. Settlements are certain.

Arbitration

Arbitration is another route to settlement, but unlike the two options discussed above, where resolution is voluntary, it is typically binding. Arbitration is a private court. Like mediation, the parties must voluntarily agree to enter into arbitration; you cannot be forced into arbitration. However, embedded in fine print in many of the agreements we are asked to approve before using everyday items and services, like our cell phones, apps or software, streaming services, rideshare transportation, and medical services, is an agreement to arbitrate any legal disputes.

A judge following state or federal rules oversees your case when a lawsuit is filed. When the parties agree to arbitration, a neutral arbitrator or group of arbitrators oversees your case. The parties may agree to the rules they will follow, which often mirror state or federal rules. Arbitration can be faster, more efficient, and cheaper than court litigation and trial. As in court litigation, the parties can demand documents and information from each other through a discovery process, but it is expedited and limited. Arbitration typically ends with a hearing, like a trial, in which witnesses testify. At the end of the hearing, the arbitrator – not a judge or jury – decides. That decision is binding, which means the parties must abide by it. The parties can only dispute an arbitration award on narrow grounds; the intent is that the decision is final. Arbitration is costly but can often be less expensive than litigation and a trial, depending on the case.

Trial

A trial is often the last resort. Trials are a risk for both sides. First, they are expensive. At trial, the burden is on the plaintiff to prove their case. That means unless the defendant agrees that the plaintiff was injured, for example, the plaintiff has to prove that they was injured. That often requires getting the emergency room doctor, nurses, EMTs, orthopedic doctors, primary care doctors, and other health care providers to testify that you were injured. Your attorneys will likely have to hire experts to provide an opinion to persuade the jury. Healthcare providers’ and experts’ time can be very valuable and can get into the thousands of dollars. Your attorneys may hire someone to make trial exhibits to show the jury. Your attorneys will be working on your case night and day before and during the trial. Trials can easily cost hundreds of thousands of dollars. Trials are costly and risky.

If you prove your case, a jury may award you damages. Some juries award larger damages, and some juries award smaller damages. Some jurors do not believe in compensating injured persons for pain and suffering and may only agree to award your medical costs. Most jurors in a civil trial must agree to form a verdict.

While trials can be dramatic, they are typically not as fun as watching a trial on tv, even a real one. That is because it is your money, your health, and your life that is going to be decided. If you win, it can be vindicating as well as exhausting. If you lose, it can be defeating – and exhausting. If you are a plaintiff or defendant, you generally must be present each day of the trial. You typically will testify at trial, possibly for a day or multiple days. Trials can be any length, from days to months.

However, sometimes trial is unavoidable. If the other side has offered nothing or very little, and your attorneys believe you have a strong case, you may have no option but to go to trial.

The Dolan Law Firm is a trial firm, meaning we will use all our legal resources available and are always ready to go to trial for you.

E-Bike Insurance Chris Dolan and Aimee Kirby

Written By Chris Dolan and Aimee Kirby

This week’s question comes from Ellen, who asks: On Halloween night, my son, who is 15 ½, was riding an E-bike that my husband and I purchased for him. Everyone in our town has these, and the kids ride them to school and to practice for sports. While my son was in his costume and riding his E-bike with his friends, he struck an adult crossing the street in a crosswalk. Somebody called the cops and an ambulance. My son said he wasn’t paying attention, had his head turned talking to his friend and didn’t see the man step into the crosswalk at night. The next day the officers that showed up at the scene told us the man he hit had a broken leg. My son also received a citation because the E-bike we purchased should have only been ridden by someone 16 and older.

About three months after the accident, we received an attorney’s letter saying we were being sued. I am concerned we will get sued, and the coverage I assumed applied does not apply because the bike is motorized. I also want to take responsibility for what my son did, as it is his fault. Can you give us any guidance?

Dear Ellen,

E-bikes seemed to hit with popularity during COVID similar to the hoverboards and Segways that came before them. However, it appears that E-bikes have more staying power for commuters, teenagers, and the elderly that need assistance with cycling. The law has established three categories of E-bikes with age restrictions. The three categories are:

Class 1 – Motorized bicycle that provides pedal assist up to 20 MPH
Class 2 – Bicycles that can go up to 20 mph with throttle and pedal assist
Class 3 – Motorized bicycle that provides pedal assist up to 28 MPH

Your son was issued a citation for operating the E-bike he had because California law requires specific age requirements based on the E-bike’s speed capabilities. However, your question is more about what insurance coverage may come into play if there is an injury caused by an E-bike.

There are two types of policies wherein you might find coverage for an E-bike. As you mentioned, your automobile insurance policy is the first type of coverage. These policies often require the vehicle to be listed on the insurance policy and the definition of automobile precludes E-bike coverage. The other insurance policy is a homeowner’s or renter’s insurance policy. Automobiles are usually precluded from the liability portion of these policies because they are considered “motor propelled” whereas a typical bicycle is often covered. E-Bikes can sometimes be motor propelled and sometimes self-propelled, depending on the make and model. These features may present an issue here, as well. Many people only realize their coverage needs once it is too late and an accident has already happened. Companies are starting to offer E-bike coverage or re-write their policies to include E-bikes. A new coverage option called Incidental Low Power Recreational Motor Vehicle Liability Coverage was introduced in 2022 to allow coverage of E-bikes under this endorsement. However, two exclusions entitled Non-owned Motorized Bicycles and Motorized Scooter Liability Exclusion and Motorized Bicycle and Motorized Scooter Liability Exclusion have also been introduced which would specifically exclude coverage.

So, call your agent with the police report describing the E-bike by make and model and see if coverage is available for this loss.

Assembly Bill 2147 defines when a police officer can stop, arrest, or cite a pedestrian

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from James from San Francisco who asks: Is jaywalking now legal? Would you please explain the new jaywalking law?

Dear James:

Thanks for your question. We have received several enquiries about this topic and think is worth discussing again. Our office has people who grew up in major cities across the U.S. and often dealt with intense traffic on a daily basis. For example, Mr. Remmer, originally from Chicago, a bustling metropolis, recalls walking the streets of the Loop or the Magnificent Mile, where you could always spot the tourists from the locals by how they treated street-crossing. In cities like Chicago and New York, resident pedestrians, always seemingly in a hurry, do not wait for a white stick-man figure to tell them when they can cross the street. They look both ways, observe no cars coming, and keep moving.

Once Mr. Remmer moved to Los Angeles, in did not take long for him to ditch this practice. Constant anecdotes, refrains, and warnings from friends about receiving “$197 tickets for ‘jaywalking’” elicited the fear he needed to reconsider his street-crossing habit. Law enforcement cited citizens for egregious conduct, as crossing in the middle of the street, or for something as harmless as entering the crosswalk when the countdown signal had already begun.

Even more nefarious, concerned California citizens and activists noticed that these seemingly innocuous citations seemed more to serve as a pretext for police officers to engage in racially biased, unnecessary “stops,” searches, and arrests.

In response, the legislator has passed Assembly Bill 2147, which goes into effect on January 1, 2023. The Freedom to Walk Act would de-criminalize jaywalking. AB2147, (Ting) states in pertinent part as follows:

“Existing law imposes various duties relating to the rules of the road, including, but not limited to traffic signs, symbols, markings, and pedestrians’ rights and duties. Existing law prohibits pedestrians from entering roadways and crosswalks, except under specified circumstances. Under existing law, a violation of these provisions is an infraction. Existing law establishes procedures for peace officers to make arrests for violations of the Vehicle Code without a warrant for offense committed in their presence, as specified.

This bill would prohibit a peace officer, as defined, from stopping a pedestrian for specified traffic infractions unless a reasonably careful person would realize there is an immediate danger of collision with a moving vehicle or other device moving exclusively by human power…” (emphasis added).

The bill incorporates the changes to Section 21456 of the California Vehicle Code, amended as follows:

Veh. Code Sec. 21456

…

(c) A pedestrian facing a circular green signal, unless prohibited by sign or otherwise directed by a pedestrian control signal as provided in Section 21456, may proceed across the roadway within any marked or unmarked crosswalk, but shall yield the right-of-way to vehicles lawfully within the intersection at the time that the signal is first shown.

(d) A pedestrian facing a green arrow turn signal, unless otherwise directed by a pedestrian control signal as provided in Section 21456, shall not enter the roadway.

(e)(1) A peace officer…shall not stop a pedestrian for violation of subdivision (c) or (d) unless a reasonably careful person would realize there is an immediate danger of a collision with a moving vehicle or other device moving exclusively by human power.

…

Assembly Bill 2147, and Vehicle Code 21456(e)(1) do not repeal jaywalking laws. Instead, they define when a police officer can stop, arrest, or cite a pedestrian. While it is unclear if this measure will increase pedestrian safety, it hopes to decrease unnecessary, pretextual police interactions they can weaponize against vulnerable citizens.

Respect For Marriage Act (RFMA) v. Defense For Marriage Act (DOMA)

Written By Chris Dolan and Nicoletter Rae Bencito

This week’s question comes from Aidan from San Francisco, who writes: My partner and I celebrated President Biden’s signing of the Respect for Marriage Act into law. However, we are both still concerned that our rights to marriage equality and same-sex marriage are still in jeopardy. What exactly is the Respect for Marriage Act, and how will the law protect us when my partner and I decide to get married?

Dear Aidan,

Thank you for your question. While the nation celebrates the passing of this landmark legislation, many people across the country have concerns. It is important to reflect on the nation’s history with marriage equality, and how the Respect for Marriage Act plays a role in protecting the rights afforded in marriage.

The main goal of the Respect for Marriage Act (RFMA) is to repeal the Defense of Marriage Act (DOMA) and to ensure respect for state regulation of marriage. As many remember, President Clinton signed DOMA into law in 1996, banning the federal recognition of same-sex marriage. It limited the definition of marriage to the union of one man and one woman. It further allowed states to refuse recognition of same-sex marriages granted under the laws of other states. In prior rulings, the Supreme Court held that provisions under DOMA were unconstitutional. But Dobbs v. Jackson Women’s Health Organization (2022) recently called marriage equality into question. The decision in Dobbs overturned Roe v. Wade by finding the US Constitution does not protect the right to abortion. Justice Clarence Thomas’ concurring opinion argued that the Supreme Court should also reconsider the decision in Obergefell v. Hodges (2015). It held that the 14th amendment required all US states to recognize same-sex marriages. By signing the RFMA, Congress and President Biden legally require federal and state recognition of marriage between two individuals, regardless of sex, race, ethnicity, or national origin. Should a state violate the RFMA, the act allows the Department of Justice to bring a civil action and establishes a private right of action for individuals for such violations.

It’s important to note that the RFMA does not require states to allow same-sex marriages. Suppose the Supreme Court decides to overturn this decision and previous state prohibitions on same-sex marriages go back into effect. In that case, RFMA only requires states and the federal government to respect marriages conducted in places where it is legal. While same-sex marriage has been legal in California since 2013, the rights of individuals who reside out-of-state may be in jeopardy should Obergefell v. Hodges (2015) be overturned. Additionally, the act does not require religious organizations to provide goods or services to formally recognize or celebrate a marriage or recognize under federal law any marriage between more than two individuals.

The signing of the RFMA marks a cultural shift in the nation’s stance on same sex-marriage. Less than 30 years ago, there was united opposition to expanding marriage equality from a relationship between a man and a woman. While the enactment of the RFMA signifies a step in the right direction for marriage equality across the nation, there are still a few areas within the law that the courts can address to protect the right to marriage further.

For over 20 years, the Dolan Law Firm has worked to protect an individual’s civil rights and fought for the full and complete equality of all persons in cases filed in federal and state court in San Francisco and across California. If you are currently experiencing a violation of your civil rights, speak up and start working with an experienced civil rights lawyer to rectify the issue. The civil rights lawyers at the Dolan Law firm are proud to be legal advocates for every person and community in California. The Dolan Law Firm here to protect you and your rights.

Hospital Lien Act Gives Health Care Providers Legal Recourse

Written By Chris Dolan and Nancy Avila Villatoro

This week’s question comes from Anonymous who asks: Are my medical providers entitled to a portion of my settlement?

Dear Anonymous,

Great question. Let’s create an example where you are in your car stopped at a red light, and the driver behind you is distracted, does not press the brakes in time, and rear-ends your car. You are injured and require medical treatment. The ambulance arrives and transports you to the nearest emergency room. You have health insurance that will cover your treatment. Are the hospital and the medical providers that provided you treatment entitled to seek payment from you for the treatment you received, even though you have health insurance?

It depends.

Statutes provide that a hospital treating an injured person shall have a lien on the claim or recovery of the patient against the tortfeasor causing the injury or on any claim or recovery arising from the injury. Courts must determine the conflicting interests of hospitals, injured patients, attorneys, insurers, and sometimes the public in proceeds that often may be insufficient to satisfy all parties.

In California, if you pursue a personal injury claim, the law states that hospitals can recoup the cost of care provided by asserting a lien on your personal injury action. According to the California Legislature, a hospital may assert a lien for any “emergency and ongoing medical care” under the Hospital Lien Act for reasonable and customary charges. (Cal. Civ. Code, § 3045.1.) Therefore, a hospital may be entitled to recover for all the care provided to you. (Newton v. Clemons (2003) 110 Cal.App.4th 1.)

The Hospital Lien Act “compensates a hospital for providing medical services to an injured person by giving the hospital a direct right to a certain percentage of specific property, i.e., a judgment, compromise, or settlement, otherwise accruing to that person.” Newton v. Clemons, (2003) 110 Cal. App. 4th 1, 14.

Civil Code section 3045.4 establishes the “certain percentage” of the judgment or settlement amounts to which the lien applies: “Any person, firm, or corporation, including, but not limited to, an insurance carrier, making any payment to the injured person.., for the injuries he or she sustained, after the receipt of the notice [of the hospital lien], without paying to the [hospital] the amount of its lien claimed in the notice, or so much thereof as can be satisfied out of 50 percent of the moneys due under any final judgment, compromise, or settlement agreement after paying any prior liens shall be liable to the … [hospital] for the amount of its lien claimed in the notice which the hospital was entitled to receive as payment for the medical care and services rendered to the injured person.”

How does this affect your personal injury recovery?

When medical liens (or rights of subrogation) are asserted, it may substantially reduce the net value of your potential personal injury claim. In some cases, liens, including medical liens, may take legal action that is economically impractical.

Whether you decide to hire an attorney or proceed with your personal injury claim, it is important to evaluate the charges the hospital asserts. Depending on the extent of your injuries and medical bills, you may need an expert in medical billing. They determine whether the charges were related and necessary to treat the injuries. Second, you may be able to challenge the reasonableness of the bills and utilize any arguments made by the at-fault party that the charges were excessive. Additionally, you may be able to challenge the hospital to provide customary payments made by health insurance carriers for the same or similar services.

It is important to note that under the Hospital Lien Act, the lien does not apply to first-party claims like underinsured motorist benefits. (Weston Reid, LLC v. American Insurance Grp., Inc. (2009) 174 Cal.App.4th 940.) Underinsured motorist benefits is insurance coverage you purchase that protects you if you are involved in an incident where the at-fault person carries liability limits that are too low to cover the medical expenses of any injured person.

While the basic concept of a medical lien may be simple enough to some, several circumstances can complicate matters. Is the lien for the amount the medical care provider would charge an individual or the amount it would charge an insurance company? Exactly to which proceeds does the lien attach? What if all or part of the bill is payable from another source, such as workers’ compensation or Medicare? Are there other state or federal statutes that will allow your medical providers or health insurance carriers a right to recovery?

Ultimately, a defendant or an at-fault party will not settle a third-party claim without putting the hospital on the check or writing a separate check to satisfy the lien. Therefore, it is crucial to obtain legal representation to understand the complexities of medical liens. Your attorney can engage the hospital early on to maximize your recovery by limiting the amount of the lien as much as possible and allowing for a quick and efficient settlement of your claim.

San Diego jury finds Felipa Cazarez (defendant) responsible for the injuries caused by her actions to our client Mr. Martin Castro-Gonzalez and awards $16,702,050.00.

On September 28, 2019, Felipa Cazarez, defendant, crashed her vehicle into a pickup truck parked in a residential driveway. At the time of the collision, sixty-one-year-old Martin Castro-Gonzalez was leaning on the truck. Mr. Gonzalez was thrown to the ground, causing spinal injuries resulting in paraplegia. Mr. Gonzalez alleged Ms. Cazarez was driving under the influence of alcohol and caused his injuries. On December 5, 2022, trial began in San Diego County Superior Court.

On December 9, 2022, the jury returned a verdict in the amount of $16,702,050.00 in favor of Mr. Gonzalez, including a finding of punitive damages against Felipa Cazarez. After the verdict, a smiling, teary-eyed Mr. Gonzalez stated,

“I’ll never get my life back, but at least I know I’m worth something.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or chris@dolanlawfirm.com

Written By Chris Dolan and Kimberly Levy

This week’s question comes from Shelly D. from San Francisco, who writes: I have lived in San Francisco all my life. I have noticed more and more people in our community are in crisis on the streets. Often with mental or substance use disorder, they are left to fend for themselves without food, warm clothing, or adequate medical care. What can California do to help our fellow Californians in need?

Dear Shelly,

Great question. A novel plan to address these issues is in the works. Earlier this year, the California State Legislature enacted SB 1338, the Community Assistance, Recovery, and Empowerment Act (CARE Act) signed into law by Governor Newsom in September 2022. The law created CARE Court, a new court-based framework established to provide care and support for Californians with untreated mental health and substance use disorders. Those disorders often lead to homelessness, incarceration, or even death without proper care and support. CARE Courts intend to provide court-ordered, community-based services for those underserved populations without infringing on people’s rights.

What services will be provided by CARE Court?

CARE provides “trauma-informed” “clinically appropriate, community-based … services and supports that are culturally and linguistically competent.” This support includes counseling, stabilizing medication, social services, housing assistance, and counsel for all court appearances for a diverse population with diverse needs.

Who will be eligible for CARE?

CARE focuses on assisting people with those with severe mental disorder or substance use disorder. There are strict requirements to qualify for the program. The following criteria must be met:

person must be at least 18 years of age;
person must be currently experiencing severe mental illness or diagnosis of substance use disorder;
person must be unstable in ongoing voluntary treatment;
person either is unlikely to survive in the community without supervision and the person’s condition is substantially OR requires supports to prevent relapse or deterioration of their condition likely to result in serious harm;
the CARE program would be the least restrictive method to ensure person’s recovery/stability; and
it is likely the person will benefit from participation in the CARE program.

How will CARE Court work?

A referral to CARE Court starts with an individual seeking treatment or their representative filing a petition under penalty of perjury. The petition for CARE Court services will present facts demonstrating the petitioner meets the criteria for participation. The Court will review the petition, and if it appears to meet the criteria, the county will investigate and provide a report on whether CARE services are appropriate.

The Court will dismiss the case if an individual voluntarily agrees to services. A CARE agreement will be entered into with Court follow-up. The Court will hold a hearing if the individual does not voluntarily agree to services but meets the CARE criteria. They will appoint an attorney for those who do not voluntarily agree to participate in CARE services. The Court will determine whether a CARE plan is appropriate or whether they should dismiss the case. If the Court imposes a CARE plan, they may order services and supports such as treatment, medication, housing assistance, counseling, etc.

To remain accountable, the Court, CARE participant, counsel, and behavioral health professionals will have status hearings every 60 days for one year. After one year, a participant will be able to graduate or continue services for another year based on need.

What if CARE Court participants fail to comply with their plan?

A non-compliant participant will be subject to additional court hearings, which may result in termination from the proceedings. Still, the individual will remain eligible for some of their ordered services. The Court may also use its power to ensure an individual’s safety in the program.

What if the government does not provide the ordered services and supports?

Suppose the Court finds that a local government entity substantially failed to comply with the Court’s order for services or support. In that case, the presiding judge may issue an order imposing a fine of $1,000 per day that the government fails to comply, not to exceed $25,000. Fines will be collected into a CARE fund to pay back into the program.

When will CARE be implemented?

Pilot program CARE Courts will be established in seven counties in California by October 1, 2023. Pilot counties include San Francisco, San Diego, Orange, Riverside, Stanislaus, Tuolumne, and Glenn. The remaining 51 California counties must implement CARE Courts by December 2024.

The CARE program requires creating significant new infrastructure, and it presents a glimmer of hope that those in need of assistance will have meaningful access to supports and services. That meaningful access can put their lives on a safer, healthier trajectory.

Written By Chris Dolan and Matthew Gramly

This week’s question comes from Anonymous, who asks: What happened to the recent concealed carry permit legislation that was pending regarding carrying a concealed handgun?

Dear Anonymous,

Thank you for your question. As many of us know, California has some of the strictest gun control laws in the nation. That is coming to an end, given a recent U.S. Supreme Court ruling. In June of 2022 the Court issued a ruling that effectively makes California’s current law regarding who may or may not obtain a concealed weapons permit, or CCW, unconstitutional.

The Second Amendment in the Bill of Rights to the Constitution is a single sentence, reading,

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Twenty-seven words, three commas, shouldn’t be hard to understand. But the true meaning of the Amendment has been hotly debated and litigated for decades.

In 2008, in an opinion authored by Justice Antonin Scalia in the case of District of Columbia v. Heller, the Court, for the first time in over 200 years, recognized a Constitutional right of a private individual to own a firearm for traditionally lawful purposes, primarily self-defense within one’s home. Justice Scalia’s opinion was the first time the Court had ever recognized the right of an individual to own a firearm unconnected to whether or not that individual served in a militia.

This past June, a newly conservative Court issued a 6-3 opinion in the case of New York State Rifle & Pistol Association, Inc. v. Bruen wherein the Court took the Heller decision a step further, holding that private individuals have a Constitutional right to carry a handgun for self-defense outside their home.

Why does that matter to California? In the Bruen case, New York had a “may issue” handgun permit statute, as opposed to a “shall issue” statute. Essentially, the New York statutory scheme required that an individual requesting a CCW permit demonstrate some special need above and beyond garden variety self-defense, a heightened showing of “good cause,” to get approved for a concealed carry permit. The authority to grant or deny such permit requests was typically granted to the local county Sheriff, who “may” issue a permit, or not, depending on that Sheriff’s determination of whether or not you have shown enough “good cause” to qualify for one. These kinds of statutes, some have argued, leave the right to exercise one’s Constitutional rights up to your local Sheriff and what your local Sheriff thinks of you, which hardly seems fair. California has a similar “may issue” CCW statutory setup. For example, the County of San Francisco has issued less than 15 CCW permits in the last decade, while rural counties grant exponentially more CCW permits despite being more sparsely populated.

The Court found the requirement of demonstrating a particular need to be an improper barrier to exercising one’s Second Amendment Rights. It determined New York’s statute to be unconstitutional, effectively determining California’s law to be unconstitutional as well.

Almost immediately State Attorney General Rob Bonta authored a replacement bill that would meet the requirements of the Supreme Court while still aiming to protect Californians from gun violence.

The Court’s ruling in the Bruen case permitted counties and states to recognize certain sensitive gun-free zones, such as churches or schools. California’s legislators sought to exploit that loophole. They designated hospitals, schools, medical facilities of any kind, libraries, and government buildings. in creating such an expansive list of these gun free zones that effectively made it so that the only place one would be legally permitted to carry a handgun in California would be in the middle of nowhere—a thousand feet from any other person or structure. The bill failed to pass the Assembly by a single vote.

While maybe keeping with the specific language of the Bruen decision, certainly violated the spirit of the decision in such a manner that there is no possibility that it would have survived court challenges. Legislators overreached to such a degree they would have come close to effectively making the entire state a gun free zone had this bill passed. Now they must go back to the drawing board and start over, all while California’s current CCW remains unconstitutional and local authorities are unsure how to proceed.

Written By: Christopher Dolan and Jeremy Jessup

This week’s question comes from anonymous from San Carlos who asks: I recently read about the heartbreaking story involving the couple from San Carlos who were killed in a motor vehicle collision in Redwood City. Based upon the news articles, the at fault driver may have been a 17-year-old kid, with friends in the car. If the teenager is in fact at fault, can their parents be held accountable? What about the friends?

You are absolutely correct; this was a tragic and heartbreaking event that did not have to happen. Those children should still have both of their parents. And the answer to your first question, is yes, the parents can be held liable for the acts of a 17-year-old. In California, the parent or legal guardian of a minor who is under the age of 18, must sign a driver’s license application for said minor to receive their license. As a result of signing that application, the parents or legal guardian are bound by Section 17707 of the vehicle code, which essentially spells out civil liability for that parent or guardian if the minor causes a collision.

That code sections says:

“Any civil liability of a minor arising out of his driving a motor vehicle…is hereby imposed upon the person who signed and verified the application of the minor for a license, and the person shall be jointly and severally liable with the minor for any damages proximately resulting from the negligent or wrongful act or omission of the minor in driving a motor vehicle.”

Thus, this code section makes a parent or legal guardian jointly liable for “any damages proximately resulting” from the accident. That includes compensation for non-economic losses like pain and suffering and those associated with a wrongful death matter. Given the severity of this collision, it could add up to a significant amount.

With regards to the friends, this is a bit more complicated and depends on the facts. But the short answer is yes. A passenger can be held liable for a collision if they undertook very specific acts. One would be operating the vehicle as a passenger. This would include controlling the steering wheel, the brakes the gear shift or any other part of the vehicle that would affect the maneuvering of the vehicle. Another means in which a passenger could be held liable, is if they incapacitated and/or distracted the driver. This could occur by blocking their vision, bumping them, or distracting them by whatever means. Finally, a passenger may be held liable if they “encouraged” the driver. Encouragement can take many forms. Some classic examples include encouraging an intoxicated driver to drive and a semi-recent example would be a passenger encouraging the driver to drive faster.

In the case of Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, Hayley Meyer was a passenger in a vehicle being driven by her friend, Brandon Coleman. While driving to their destination, she told Coleman to turn on Skyview Drive, a street she knew dips that could make a vehicle become airborne. She also knew the speed limit was 25-mph. According to the facts, Hayley told Coleman about the dips and that it would be fun to drive at a high rate of speed on them, and he should do it. Coleman turned onto Skyview Drive, and she told him to “go faster.” He did. Unfortunately, Coleman sped up, went airborne, lost control of the car, and crashed into a parked vehicle, killing a father of three.

The court was presented with the issue of whether or not Haley Meyer could be sued for negligence, even though she was not actually the driver of the car. The Court ruled that she could.

If the teen driver is at fault and it can be argued that the two passengers, believed to be 15 years old, encouraged the teen to drive fast, they too could be held accountable. The next logical question is, could their parents?

This one is more complicated for a couple of reasons. First, if the passengers were in fact 15-years old or did not possess a driver’s license/learners permit, then we have no parent or legal guardian signing off on their license. In addition, section 17707 specifically hinges liability on the parent/guardian for “civil liability of a minor arising out of his driving a motor vehicle”. In this case, the passengers were not “driving” the vehicle.

However, this type of liability may be covered by California Civil Code section 1714.1, which states:

“Any act of willful misconduct of a minor that results in injury or death to another person, or in any injury to the property of another, shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages.”

However, the statute puts a few limitations on the amount the parent or legal guardian can be liable for, which is $25,000.00 (this amount is subject to cost-of-living adjustments every two years. The most recent figure appears to be $47,100.00). In addition, it does not allow compensation for pain and suffering, only economic damages, such as medical expenses.

Regardless of who may be held liable, as we head into the holiday season, it is a good time to remind all of your loved ones to drive attentively and carefully so that we might decrease the number of tragic roadway collisions and not have to worry about questions such as these.

Written By Chris Dolan

This week’s question comes from Jared from San Francisco: E-bikes are taking over the streets. I see more and more every day. Do you need to get a special license to ride one, like a motorcycle? And do you need insurance to ride one?

Thank you for the questions about e-bikes, Jared.

Electric bicycles have become a common form of transportation in the San Francisco Bay Area. It is valuable to know what e-bikes are and what the law is regarding the use of e-bikes.

An electric bike (e-bike) is a bicycle with an electric motor that assists the propulsion of the bike instead of being propelled solely by the pedaling of its rider as with a traditional bicycle. There are a variety of e-bikes that differ in operation and power of the motor. In California, e-bikes’ motor must be less than 750 watts. If the motor is over 750 watts it will qualify as a motor driven cycle and have requirements similar to a motorcycle.

In 2015 AB-1096 was passed by the California legislature. This law sets forth three classifications (Class 1, 2 and 3) of e-bikes based upon their maximum speed, propulsion assistance by the motor, and method of operation.

Class 1: A class 1 e-bike is a low-speed pedal-assisted electric bicycle. Class 1 e-bikes are equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 20 miles per hour.
Class 2: A class 2 e-bike is a low-speed throttle-assisted electric bicycle. Class 2 e-bikes are equipped with a motor that may be used to propel the bicycle without pedaling, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour.
Class 3: A class 3 e-bike is a speed pedal-assisted electric bicycle. Class 3 e-bikes are equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 28 miles per hour, and equipped with a speedometer.

E-bike riders must follow the rules set forth in California vehicle code. Some general rules to remember are:

Pedestrians have the right of way. This includes pedestrians in and out of a crosswalk; bike riders are required to yield to pedestrians.
Riders are required to stop behind crosswalks, leaving them clear for pedestrians.
E-bike riders must stop at stop signs and obey traffic lights just like motor vehicles.
Reflectors and a front white light are required by law at night time.
Class 3 e-bikes are prohibited from Class 1 multi-use bike paths such as hiking or recreational trails.
Class 3 e-bike riders must be over the age of 16 and wear a helmet.

California state law and vehicle code sets forth most of the rules regarding e-bikes, but local ordinances also impact how e-bikes can be used. In San Francisco it is illegal to ride on the sidewalk if you are over the age of 13. Also, in San Francisco riders must keep at least one ear open and free from any headphones or other devices that can cause distraction. You must leave one ear free to ensure you can hear your surroundings.

When it comes to licensure and insurance, e-bikes are treated like bicycles rather than motorcycles. E-bike riders are not required to obtain any special licensure to operate them. As of 2017, all e-bikes in California are required to have a label that describes its type, top assisted speed, and motor wattage. This can be used to identify what class of e-bike is being operated. It is also unlawful to tamper with or alter an e-bike’s speed capabilities without replacing the label on the bike that specifies what the speed capabilities are.

E-bikes are not treated as motorcycles in California and therefore liability insurance is not required. As we mentioned above, an e-bike motor is less than 750 watts, if a bike’s motor is over 750 watts the bike is classified as a motor driven cycle and will require insurance and licensure similar to a motorcycle.

Some insurance company policies may cover injuries from accidents involving e-bikes. Base policies will generally not specifically cover accidents involving e-bikes but will cover personal injury accidents. This can leave some room to get financial compensation even if you or the other party doesn’t specifically have e-bike insurance. If you want to know the details of e-bike insurance available to you, you should contact your insurance agent or a skilled accident attorney to discuss what coverage is available under the circumstances.

With a growing population of e-bike riders in the Bay Area it is important to stay vigilant and safe on the road. If you are ever in an accident with a bicycle, make sure your attorney knows the difference in e-bike classifications and what rights and responsibilities motorists and bicyclists have under California Law. Be safe out there, thank you for writing in with your questions.