Dealing With a Dog Attack

Written By Christopher Dolan and Aimee Kirby

Adriana from the Bay Area writes: On May 25, 2020 we brought our small dog Piper to a dog park. We have visited this park a number of times and never had an issue. The dog park has a section for large dogs and also a separate section for smaller dogs, to keep everyone safe. While my husband and I were in the small dog park an elderly woman entered the small dog area with what looked like a Sheppard mix that was about fifty pounds and a Chihuahua. Immediately having the big dog in the small dog park concerned me. My husband and I decided to leave. As we were putting on Piper’s leash, the Sheppard mix suddenly darted towards Piper and grabbed her neck. In a matter of seconds, blood was everywhere and my husband and I were desperately trying to get Piper out of the dog’s mouth. The owner of the dog just stood there screaming and crying. The dog ended up biting both of us as we tried to rescue Piper. Before we left my husband took a picture of her car insurance card, and she told us she had homeowner’s insurance with the same company. We rushed Piper to her vet, but her injuries were so significant and she was in so much pain, the doctor advised us to put her down. We are both very upset and don’t know what can be done to hold this dog owner responsible. 

Dear Adriana, I am so sorry to hear what occurred to poor Piper. Our dogs are like members of our family and seeing them in pain is hard for us. The law hasn’t really caught up to how we, in our hearts, feel about our animals. Our little furry family members are still considered property under the law, and the food, training, and hours of love that we put into making them happy are not something the law recognizes as damages in California. Neither is the immense joy and love that they provide to us. Insurance companies will reimburse you the cost of repair or replacement of your property. It is immensely sad that the law does not recognize that we see our pets different than our cars. 

Under Negligence and Strict Liability legal theories, you may have a potential claim for any physical injuries you and your husband suffered by the dog attack on this day. California law defines negligence as the failure to use reasonable care to prevent harm to oneself or to others. A person is negligent if he or she fails to do something that a reasonably careful person would do in the same situation. In California, you aren’t required to prove that someone acted unreasonable to seek your damages, as we have a Strict Liability regarding dog bites. Strict Liability imposes liability by the act itself and you don’t have to prove the owner acted unreasonable to seek this damage. In addition to being able to seek your veterinarian bill, money, when you are ready welcome another dog into your life, and your own medical expenses and pain and suffering, you also have a claim for what is called Negligent Infliction of Emotional Distress. Negligent Infliction of Emotional Distress allows you to collect damages for witnessing your husband getting bitten and damages for him for watching you get bitten. We often refer to this claim as a bystander damage claim. 

You were very wise to get a picture of her insurance card. If you do a web search for the carrier, often times, you can submit your claim online through a portal on their webpage. They will want the veterinarian bill, pictures of your injuries and any medical bills/medical records that document your losses. If you missed any work, they will want to see a paystub to determine your rate of pay and a medical provider note verifying you needed the time off work. Sometimes the carrier will ask for your statement or for you to sign authorizations to get your medical records. You are not required to give a statement and you are not required to sign authorizations. Once the carrier has this information, they will make you an offer based on the damages presented. Remember you are not required to accept their first offer, and can negotiate with them. Once a final number is agreed upon a release will be sent. Once the release is signed, the insurance company will forward the settlement proceeds. 

When a case resolves, meaning you have signed a release and received the settlement, that will be the total amount of money your will receive. You cannot come back and seek additional sums for injuries that get unmasked later as you begin moving farther away from this loss. It is very important you know the full nature and extent of your injuries. 

We are very sorry for the loss your family has suffered and give you strength in this difficult time. 

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My First Auto Accident. What Do I Do?

Written By Christopher B. Dolan and Corinne D. Orquiola

This week’s question comes from Angelica H. in Pacific Heights who asks: I was at a complete stop at a red traffic light at the intersection of Market Street and 6th Street, when suddenly and without a warning, the vehicle directly in front of me reversed straight into my vehicle when the light turned green. The forceful impact caused me to crash into the vehicle behind me, leaving me sandwiched in between the two vehicles. The front of my vehicle is destroyed. To make things worse I began to feel excruciating pain in my right wrist, and it became swollen immediately after the impact. This is my first car accident, and I don’t know where to begin. I exchanged information with the other drivers and gave a statement to the reporting police officer. All I know is that my car is undriveable and I have a mounting pile of medical bills that I have not been able to pay since I had to take time off work after my wrist surgery. I realize that this is not a typical car accident, but is there anything I can do to recover for my medical bills, lost wages, and pain and suffering?

Dear Angelica: The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. You did the right thing exchanging information with other drivers. After a car accident, it is very important to obtain the other driver’s information which includes:

  • Full Name
  • License Plate
  • Car Insurance Information

It is also important to obtain a copy of the police report and to take pictures of your injuries, the property damage, and the accident scene itself to give context. 

Under California Vehicle Code (CVC) section 21451 (a), a driver facing a circular green signal, “…shall proceed straight through or turn right or left or make a U-turn unless a sign prohibits a U-turn.” Furthermore, CVC 22106 states that, “No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety.”

In your case, the driver violated these two sections because they failed to proceed straight through the intersection as mandated by CVC 21451(a). Second, they did not start the vehicle from a stop with reasonable safety because they did not notice that the vehicle was in reverse gear. Clearly, they were operating the vehicle negligently.

If you were injured in a car accident because of another’s negligent driving, you have the right to seek compensation for your economic and non-economic damages. Economic damages include tangible losses that can be easily calculated such as medical expenses, lost wages, and property damage. In regard to the medical expenses you have incurred, you are entitled to recover the amount paid by your health insurance as well as any out-of-pocket expenses. For this reason, it is important to keep copies of your medical expenses, including but not limited to:

  • medical bills
  • receipts for pain medication, and
  • receipts for any medical devices you had to purchase as a result of the accident.

Similarly, you will want to gather information to support your loss of wages claim such as pay stubs or a letter from your employer confirming the dates you missed from work as a result of this collision. 

Non-economic damages are more difficult to quantify as those damages relate to the types of harm that do not come with a receipt. Under California Jury instruction 3905A, you may recover for non-economic damages which include things like pain and suffering, physical impairment, disfigurement, grief, anxiety, humiliation, inconvenience and emotional distress. Be mindful of how your life has changed since the accident and take note of activities you are unable to do as a result of your injury as they will form part of your non-economic claim. 

We have handled numerous cases in which individuals have suffered bodily injuries due car accidents. However, this column does not constitute legal advice and it is important that you consult with an experienced trial lawyer as soon as possible, especially if you suffered personal injuries.

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LGBTQ+ and the U.S. Supreme Court: What You Need to Know

Written By Christopher B. Dolan and Matthew D. Gramly

It is now early June, the time of year when the U.S. Supreme Court steadily releases all of the remaining opinions they have not yet released throughout the Court’s term. Since June is also Pride month, Court watchers are keeping an eye out this year for the Court’s opinion in a case involving adoptions of children by LGBTQ+ families. The case, Fulton v. City of Philadelphia, involves a religious-based adoption and foster care agency that refuses to provide any services to married same-sex couples. The agency’s denial of services is based on the religious beliefs of the Roman Catholic Archdiocese of Philadelphia, which runs the agency. Because of the denial of services to married same-sex couples, the City of Philadelphia canceled a contract with the agency because of this discriminatory practice. The Diocese thereafter sued the City, alleging that local regulations discriminate against the Diocese because of their religious beliefs.  

One year ago, the United States Supreme Court handed down a landmark decision in support the LGBTQ+ community in holding that employers who terminate an employee because that employee is gay, lesbian, or transgender is in violation of Title VII of the 1964 Civil Rights Act.  But one year ago, Ruth Bader Ginsberg was still on the Court. Today, Associate Justice Amy Coney Barrett occupies Justice Ginsberg’s former seat on the Court. And today, with the addition of Justice Barrett to the Court, there is a 6-3 conservative majority on the Court, including Trump’s other two appointees, Justices Kavanaugh and Gorsuch. It is a much different Court today than it was one year ago and no one knows quite what to expect on the Fulton case.

For more than 100 years the Roman Catholic Diocese of Philadelphia had run Catholic Social Services (CSS), a foster care agency in the city. CSS had a contract with the city to provide foster care and adoption services to the city’s residents and children under the terms of which CSS received taxpayer funds from the city. During an investigation in early 2018 Philadelphia’s main newspaper, the Philadelphia Inquirer, discovered that CSS had a policy of refusing to provide foster or adoption services to same sex couples. The paper notified the city’s Department of Human Services (DHS), the department overseeing and enforcing regulations for such foster care agencies, and asked if the city was aware of CSS’ policy. DHS discovered that only one other foster care and adoption agency in the city run by religious organizations (there were several) had a similar policy of discriminating against same-sex couples. DHS Secretary Cynthia Figueroa thereafter canceled CSS’ contract with the city because of CSS’ discriminatory practices.  

CSS and the Archdiocese sued the City of Philadelphia pursuant to the Free Exercise Clause, the Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S. Constitution. CSS also alleged religious discrimination had been perpetrated against them by the city government. The Free Exercise clause, accompanied by the Establishment clause, reads in relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The contention was that Philadelphia’s city government, by canceling their contract with CSS because CSS did not provide services to same-sex couples, was using the power of government to discriminate against CSS and the Diocese solely because of the religious beliefs held by both; that by canceling their contract the city was preventing CSS and the Archdiocese from freely exercising their religious beliefs, and was using the power of government to disfavor the Catholic faith impermissibly.

The majority opinion in this case is due to be handed down by the Court any day now. The implications could be devastating to LGBTQ+ families and their ability to adopt children from adoption and foster care agencies run by religious organizations. As with most cases involving LGBTQ+ discrimination issues, it pits the right to be free from discrimination because of one’s sexual orientation against claims that “religious freedom” permits various churches and religious organizations to openly discriminate against people in the LGBTQ community because of deeply held religious beliefs.

The case was argued before the Supreme Court on November 4, 2020, the day after the 2020 election.  Associate Justice Amy Coney Barrett had been on the Court for just ten days. It is important to note as well that all six of the Court’s conservative Justices, Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Justice Barrett were all raised Catholic and all six remain practicing Catholics to this day.  

Justice Ruth Bader Ginsberg spent her entire life fighting against discrimination of all kinds, including discrimination against the LGBTQ+ community. Following her death last year, Rea Carey, executive director of the National LGBTQ Task Force, said in a statement that,

“Justice Ginsburg was an American hero and pioneer, a voice for so many marginalized people, leaving behind a legacy of courage, tenacity, and historic impact in creating a better country and a better world for all of us. We are all so grateful for all Justice Ginsburg has done for LGBTQ people, for women, for our ability to control our own bodies, for all that seek to move freedom forward in this country.” 

Justice Amy Coney Barret, on the other hand, belongs to a Catholic sect that believes wives should be subservient to their husbands and openly opposes both abortion and just about any rights extended to members of the LGBTQ+ community, even banning them from membership in the sect. One would be wise to not get their hopes up with regard to this particular imminent Court decision.  

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Celebrating Juneteenth with Dolan Law Firm

Juneteenth commemorates the end of slavery in the United States. It is an important milestone in American history but to date, it remains an under-recognized day.

On January 1, 1863, President Lincoln signed the Emancipation Proclamation declaring the end of slavery in the United States. However, enforcement was slow and it took an additional two and a half years for General Gordan Granger to arrive in Galveston, Texas to announce General Orders No. 3 (end of slavery).

“The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.”

In other words, enslaved people in Galveston, Texas did not know they had been freed until June 19, 1865. This date marks the true end of slavery in the United States. Today, 47 states and the District of Columbia recognize Juneteenth as either a state holiday or a day of observance but only a handful observe it as a paid holiday. Juneteenth has also been celebrated under other names such as Freedom Day, Jubilee Day, Liberation Day, Second Independence Day and Emancipation Day. 

On Tuesday, the Senate unanimously passed a resolution establishing June 19 as Juneteenth National Independence Day, a federal holiday commemorating the end of slavery in the U.S.  On Wednesday, the House voted overwhelmingly in favor of the resolution. President Biden signed the resolution on June 17, 2021, making Juneteenth the first new federal holiday created since Martin Luther King Jr. Day was signed into law in 1983.

Today, Dolan Law Firm joins the celebration of Juneteenth all over the nation and acknowledge that it’s crucial to find time to pause and reflect on our nation’s history of oppression, and the resounding call for true liberation and equal justice for all. 

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Don’t Mess with California – Supreme Court Tells Texas to Sit Down

Written By Christopher B. Dolan and Jeremy M. Jessup

Jordan from Emeryville wrote in to ask: I recently read a tweet by the Human Rights Campaign that basically said there were more than 250 anti-LGBTQ+ bills moving through legislation nationwide. And that over 125 of those bills were targeting the transgender community and that eight could become law at any moment. As sad as this is, I was hoping there were some bright spots out there, are there?  

Dear H. Jordan: Unfortunately, as Pride month approaches, several states have introduced legislation related to LGBTQ+ discrimination. Some legislation will try to remove anti-discrimination laws that LGBTQ+ people really need, while others will single out and target LGBTQ+ people for unfair and unequal treatment. The burning question is what can be done to try and stop, or at the very least, limit the effects of these discriminatory laws that have been promoted under the guise of “religious liberty.”

Believe it or not, the State of California has crossed state lines in an attempt to curtail such legislation, by barring state-funded travel to states deemed to be attempting to limit the rights of the LGBTQ+ community. The measure (which has now expanded to 12 states) prevents California agencies, public universities and boards from funding work-related trips to Texas (and now other states) who have laws that are deemed discriminatory. This measure was enacted after the Texas Legislature moved to allow foster care agencies to use religious liberties as a reason to deny same-sex couples the right to foster children. At the time, California Attorney General Xavier Becerra said the law, “allows foster care agencies to discriminate against children in foster care and potentially disqualify LGBT families from the state’s foster and adoption system,” and that, “[d]iscriminatory laws in any part of our country send all of us several steps back. That’s why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it.” 

In response, Texas Attorney General Ken Paxton sued the State of California in 2017 claiming that the measure violated the U.S. Constitution’s commerce clause by discriminating against interstate commerce and called the California law an effort, “to punish Texans for respecting the right of conscience for foster care and adoption providers.” According to a brief filed, “California’s travel ban is an affront to the sovereignty of Texas — as well as the ten other States that California has blacklisted.” The brief also argued that the California ban shows “religious animus” toward Texas. 

The lawsuit, which was filed directly at the U.S. Supreme Court level (which is allowed when there are disputes between states) was supported by 19 states, who wrote briefs in support of the stance taken by Texas. Despite the prior administration’s urging to have this case heard, in a 7-2 decision and without explanation, the U.S. Supreme Court turned the case away and denied the state of Texas’ request to file a complaint. This means that California may continue with their ban. This refusal to accept the complaint is significant, given that the potential conflict between gay rights and religious freedom has become a central theme at the nation’s highest court, which now has an ostensible 6-3 conservative majority.

However, the State of California is not the only one fighting back against anti-LGBTQ+ legislation; according to the Texas Tribune, business leaders in Texas have cautioned the State that these laws could be harmful to both Texans and to the state’s economy, which is still recovering from the recession that accompanied the pandemic. Recently, members of the business group Texas Competes (made up of over 1,400 Texas employers, business and tourism groups and backed by big tech companies like Hewlett Packard) identified numerous bills that they say will infringe on LGBTQ+’s rights, “tarnish Texas’s welcoming brand,” and hurt local businesses including the tourist industry.

“Businesses big and small and economies thrive on certainty,” says Jessica Shortall, the managing director of Texas Competes. “What we’re faced with again this year is the uncertainty of whether discriminatory policies will rear their heads and cause all of the problems you’ve heard from our business speakers.”

According to the Human Rights Campaign, more than 90 major U.S. corporations have spoken out in opposition to anti-transgender legislation being proposed in states across the country. Some of the more concerning bills deal with both youth and collegiate sports. One bill, which has already passed at one level, would prevent public school athletes from participating in school sports unless their team designation was inline with their sex assigned at birth. Texas is also attempting to pass a similar mandate for colleges and universities. 

However, the NCAA (National Collegiate Athletic Association) Board of Governors released a public letter stating that it, “firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports.” Moreover, “When determining where championships are held, NCAA policy directs that only locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination should be selected.” Currently, Texas is scheduled to host several events, including the 2023 Women’s Final Four in Dallas and the 2024 College Football Playoff National Championship game set for Houston. If the NCAA were to deem Texas one of those states, Texas would stand to lose out on nearly $1 billion dollars in economic benefits. This warning by the NCAA puts not just Texas, but another 29 states on notice that if they elect to move forward with discriminatory legislation, the NCAA will act.

The steps being taken are not perfect and will not stop all of the anti-transgender legislation in the works (Tennessee Governor Lee has signed similar bills, one as recently as last month, which Nashville’s top prosecutor said recently he will not enforce.) As long as there are people and entities willing to stand up, there will always be bright spots. It should be noted that as this article was waiting to be published, Democrats in the Texas legislature have killed a bill that would have required transgender athletes to compete on sports teams corresponding to their gender assigned at birth.

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SFTLA: Adventure Virtual Conference

Join the San Francisco Trial Lawyers Association on June 18-20 for the New Lawyers Division’s Adventure Conference.  

 

There will be  26 speakers, including Dolan Law Firm’s Mari Bandoma Callado,  6 CLE hours and a fun Summer themed Care Package. All classes are virtual & there will be (optional) in person social events at the Hotel Paradox in Santa Cruz. 

Topics will pique the interest of all new lawyers and include: Evidence, Mediations, Objections, Depos, TBI cases, Second Chairing, Courtroom Tips, DE&I, Online Focus Groups, Case Checklists, After Filing, Expert Witnesses, New Lawyer Tips and more. Click here to register

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Workplace Violence: How to Stay Safe (Part 2)

Written By: Christopher B. Dolan

This week’s column is a follow-up to last week’s article on workplace violence including shootings. That column spoke about the rights and responsibilities of a business owner to create a safe workplace.

This column will inform you as to how you, as an individual and/or employee, can seek protection if you are concerned about workplace violence or the potential for violence from a family member or co-employee.

While employers are able to obtain Workplace Violence Restraining Orders, employees (and individuals outside of the workplace) are able to obtain Civil Harassment Restraining Orders to protect themselves against stalking, harassment and threats of violence. California Code of Civil Procedure (C.C.P.) Section 527.6 provides an individual the right to obtain a temporary restraining order, and if warranted, a three-year restraining order and in some instances, criminal penalties may apply. The basis for a restraining order can includes a course of conduct that constitutes harassment of an individual via phone, text, email, or other method of communication (California Penal Code Section 653(m)), stalking (California Penal Code Section 646.9), or harassment (C.C.P. Section 527.6 (b)(3). What follows are the definitions of these behaviors so that an individual who suspects violence of this sort can understand the law.

Course of Conduct
As stated in the California Code of Civil Procedure, “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”

Electronic Harassment
The California Penal Code states that “Electronic harassment” is when someone, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. 

Stalker
Under the law, a “stalker” is someone who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family. In addition to obtaining a restraining order against a stalker, the stalker may also be guilty of a misdemeanor.  

Harassment
“Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner.

Credible Threat of Violence
“Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for the person’s safety or the safety of the person’s immediate family, and that serves no legitimate purpose.

There is a form which an individual can fill out, a Civil Harassment Training Order, created by the Judicial Council of California, Form CH-100. Once Form CH-100 is stamped by the Court, a Temporary Restraining Order Pending Hearing, may be obtained and provide protection for a period of time up to 25 days by which time a hearing for a permanent injunction must be set where the Respondent may present evidence arguing against the execution of a permanent restraining order.  

For a temporary or permanent Order to have an effect, it must be served on the person to be restrained (the Respondent) and the police. You should not be the one to serve the Respondent as they may react violently. A Temporary Restraining Order goes into effect immediately and the Respondent (harasser, stalker, etc.), is immediately ordered to stay away from the protected parties (which can include family members and animals). The Temporary Restraining Order can include orders enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner. The Order can also result in the Respondent having to surrender any guns, firearms and ammunition they may possess. Violation of a temporary or permanent restraining order can result, fines, arrest and incarceration.

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Christopher B. Dolan Honored with 2021 CLAY AWARD

The Daily Journal has selected Christopher B. Dolan, founder and Chief Legal Counsel of the Dolan Law Firm, P.C. as 2021 California Lawyer Attorneys of the Year (CLAY). The CLAY Awards recognizes California lawyers whose work has made a significant impact on public policy, the law, the profession, or a particular practice area.

Read the Daily Journal Article

Dolan was recognized for his work in In Re: Ghost Ship Fire Litigation (Alameda Co. Super. Ct., filed December 23, 2016) representing survivors and families of the victims in a catastrophic fire that occurred on December 2, 2016 at an Oakland warehouse called Ghost Ship, which killed 36 and injured many others. Dolan worked with a coalition of attorneys from 25 firms representing 78 plaintiffs as an executive committee member with Robert Bale and Thomas Brandi and liaison counsel Mary Alexander. 

As noted in the Daily Journal, Alexander and executive committee members Bale, Brandi and Dolan resolved this matter with a $32.7 million settlement with Oakland officials, an undisclosed amount from PG&E and additional millions more from the building’s owners.

“This case required all of my life experience, education and decades of ‘figuring it out’.  As a young man, I worked in dirty, hot, tiring jobs in construction to fund my studies.  As a young lawyer, I renovated two old San Francisco buildings including our Market Street headquarters, learning about electrical systems, transformers, voltage drop, metering, and building/electric codes involved in old buildings.  So much of what I bring to the table is practical knowledge.” Dolan said.

The team relentlessly pursued the City of Oakland with several arduous but successful trips to the court of appeals and PG&E with multiple depositions and a mountain of documents to build a case and hold them accountable for this tragedy. 

For more on the case in the 2021 CLAY Awards publication, visit DailyJournal.com

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Workplace Violence are Increasing: How to Stay Safe

Written By: Christopher B. Dolan

Following the horrific workplace shooting in San Jose this past week, NBC Bay Area Investigative Journalist Stephen Stock reached out to me to ask: “What are the rights of employees, and what are employer responsibilities when there is a threat of workplace violence?” I provided him a response that did air, but given the constraints of the evening news, I think it is important to provide a comprehensive analysis to the readers of this column.

According to data tracked by Everytown for Gun Safety (everytown.org), there have been 37 mass workplace shootings in California since 2009.  Sadly, and notably, five of those mass murders occurred in just the last 10 weeks. Employees now, rightfully, are on high alert for signs and behaviors which may foretell a pending attack. According to experts, the following behaviors may indicate warning signs of pending workplace violence:  threats of violence; intimidation; speaking about weapon ownership; intimidation; paranoia; angry and argumentative behavior; antisocial behavior like commenting favorably about violence in the news; and vindictive behavior such as saying, “he will get his,” or, “I’ll make her pay for that.” The United States Department of Labor has an excellent publication on the issue of workplace violence called the “DOL Workplace Violence Program.” It provides a guide that can be used in judging workplace behavior and what to look out for to predict and prevent workplace violence.

California Labor Code Section 6400 states that, “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Case law has held that Section 6400 creates an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace. Therefore, if there are threats of violence, or reasonable fears for your safety in the workplace, report it to your employer immediately. It is best to do so in writing so that a record is established.

An employee may not be forced to work in an unsafe work environment and, pursuant to California Labor Code Section 6310, it is unlawful for an employer to discipline or discharge any employee for making a complaint of an unsafe working condition to them, Cal-OSHA, or any other government agencies with a responsibility to protect workers. My office has represented workers who have refused to go back to a jobsite where their foreperson had made threats of violence or, in some instances, where they have been struck by an employee or co-worker. We have also represented workers that have been retaliated against after making a complaint to their employer about unsafe workplace conditions and/or threats of violence in the workplace.  Likewise, we have represented workers fired after calling the police following an assault by a co-worker on the job. Employees who are retaliated against for making complaints of an unsafe workplace can recover economic damages such as lost pay, medical expenses, anxiety, grief, humiliation, and emotional distress. Tragically, I have also represented the family of a woman who, along with her boss and another supervisor, were shot and killed by a disgruntled employee who had made threats of violence which the employer did not take seriously.

Employers have a legal procedure that they can employ to prevent workplace violence. Pursuant to California Code of Civil Procedure (CCP) Section 527.8, “any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an order after hearing for a permanent restraining order on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.”

“Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.  “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.

A Temporary Workplace Restraining Order can be filed using a form  which can be found here. A workplace Restraining Order can ban an individual from coming near the workplace, near an employee, or their families, and it requires that the restrained person surrender any firearms that they may possess to the police. A temporary restraining order can be obtained by an employer, immediately, by filing Form WV-100, with the local court and serving the same on the employee and the local police. After a hearing, the temporary order can be extended for a period of up to three years.

Workplace violence is becoming an epidemic. No one should take threats lightly. Employees should report the warning signs and employers should act promptly.  Reach out to a qualified trial lawyer to assist you, if necessary, to take action against your employer, should they fail to meet their responsibilities, or should you suffer retaliation  If an employer fails to take immediate and appropriate action; an employee may seek a protective order themselves. That will be discussed in next week’s column.

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Celebrating the Filipino Bar Association of Northern California’s 41st Installation Gala

Leading the Filipino Bar Association of Northern California (FBANC) in the midst of a global pandemic was an incredible test of character and determination. The FBANC 2020-2021 Board of Directors faced extraordinary demands during an unprecedented year: from completely transforming FBANC’s traditional in-person programming and events into a virtual format, to engaging members experiencing fatigue from months of pent-up anxiety, as well as fundraising to support FBANC’s operations and the FBANC Foundation during a complete shutdown of the economy. Despite these challenges, FBANC remained resilient and determined to carry out its mission of serving the community.

In the summer of 2020, the National Asian Pacific American Bar Association (NAPABA) bestowed its prestigious Affiliate of the Year Award to FBANC based on our deep commitment to diversity and inclusion, as well as our zealous service to the community. In October 2020, San Francisco Mayor’s Filipino American History Month Celebration also recognized FBANC’s four-decade-long commitment to the community.

This award and recognition celebrate FBANC’s long history as a social justice and community service organization. This past year, FBANC was determined to honor that history by providing pro bono legal services through our virtual legal clinics and Know Your Rights webinars to the public. FBANC remained committed to diversifying the legal profession by supporting our attorney and law student members with professional development programs (including hosting two virtual Komunidad conferences and a virtual Pinay Powerhouse Conference), networking and mentorship opportunities, and scholarships through the FBANC Foundation.  FBANC acted in solidarity with our Black brothers and sisters and combatted the rise in anti-AAPI discrimination and hate through coalition building and collaborations with our sister organizations. Amid our profound pain and loss, we found solace in this community – a community that stands up against systemic racism, oppression and injustice.

We know that the work continues. We know that systems of patriarchy, white supremacy and capitalism existed prior to the pandemic and that these systems teach us that we do not belong. I invite you to join FBANC in celebrating our 41st anniversary by attending our Virtual Installation Gala.  This year’s theme Know History Know Self reflect the work we continue to do to resist and fight against these systems of oppression.  For more information, go to https://fbanc.org/annual-dinner

I am grateful to the Dolan Law Firm, PC for its commitment to diversity, equity and inclusion and for wholeheartedly supporting organizations like FBANC and encouraging me to take on leadership roles to serve our community.

In Solidarity,

Mari Bandoma Callado
Dolan Law Firm Senior Associate Attorney and Director, Diversity, Equity and Inclusion
FBANC President 2020-2021

 

About FBANC:

Established in 1980, the Filipino Bar Association of Northern California (“FBANC”) is an organization of attorneys, judges, law students and paraprofessionals dedicated to serving the Filipino American legal community in Northern California.  Through the volunteer work of its members, FBANC offers various programs and events, including regular free legal clinics,  professional development and mentorship programs for its law student and attorney members. The organization also provides a voice for and advocates on behalf of Filipino American interests in various forums.

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