Celebrating Jewish American Heritage Month

By the Dolan Law Firm DE&I Committee

This May, the Dolan Law Firm celebrates Jewish American Heritage Month. Learn more about the achievements and contributions of the Jewish community to American history, culture and society:

There has been a rise in white supremacist sentiment throughout the United States over the last few years, thus, it is not surprising that this has included a significant rise in antisemitic hate and violence. The Dolan Law Firm is committed to fighting against hate and bigotry and using the strength of our team to help build a more diverse, equitable, and inclusive society.

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Will Bicycle Accidents Increase as E-bikes Get Popular?

Written By Christopher B. Dolan and Nancy A. Villatoro

This week’s question comes from Anonymous who asks:  As gas prices continue to soar, I am thinking of getting an e-bike to get around and commute to work. I have noticed more cyclists on the roads, many of them riding e-bikes. Some of them seem to be going faster than their pedaling indicates and as they overtake other cyclists. Some riders don’t even seem to be pedaling, yet they are moving faster than other cyclists around them. I am still on the fence on getting an e-bike since I do not know which bike to get. Do you think bicycle accidents will increase as more e-bikes join the traditional pedal bikes?  

Hi Anonymous,

Thanks for your question. In the United States, AAA reported that the average national price for a gallon of regular gasoline hit $4.33, in March of 2022, which is the highest national average ever, not accounting for inflation. Similarly, in California, the highest recorded gasoline price for a gallon of regular unleaded hit $5.91 on March 29, 2022. By the time you read this, it is likely that prices will be higher. With gas prices rising, people across the state and country are turning to alternative wallet-friendly ways to get around town through carpooling, public transportation, electric vehicles, or more popular today and electric bicycles.

Electric bicycles, or e-bikes, are selling faster than expected for the first quarter of the year, above the already high expectations set by the pandemic boom. While many factors may be affecting the boom, such as eased pandemic restricts and workers returning to the office, many merchants point to fuel prices as a contributing factor.

In California, an e-bike is a conventional bicycle with operable pedals and an electric motor that does not exceed 750 watts. It must also not exceed 28 mph on leveled ground. The e-bike motor must cease to function when brakes are applied. The e-bike law prohibits users from modifying electric bicycles to change the speed limit. The law defines electric bikes into three-tier classifications: Class 1, 2, and 3.

Slow-Speed Rechargeable Bicycles Are Comparable to Regular Bikes – Class 1 and 2 e-bikes (with maximum supported speeds of 20 miles per hour) are typically allowed any place regular bicycles are permitted unless there is a posted sign that specifically bans e-bikes. The difference between Class 1 and Class 2 is that Class 2 e-bikes come with a motor controlled by a throttle, which allows the e-bike to be powered without pedaling. 

The Exception of High-Speed Vehicles – Class 3 bicycles have top supported speeds of 28 miles per hour. They cannot be utilized on bike paths or trails unless it is permissible by local municipalities. (California Vehicle Code §21207.5.) These types of e-bikes could be used on bike lanes and/or detached bikeways next to a road unless otherwise regulated by local municipalities. Additionally, these also require the use of helmets and cannot be used by riders under the age of 16. 

Severe injury accidents increase with higher driving speeds and more people on the road. As detailed in our previous article on March 25, 2021, “Have fun and stay safe on an electric bike,” riders can stay safe on the road by obeying all applicable traffic laws designed to keep those on the road safe. Riders should maintain a safe speed, which means not always reaching the maximum speed allowed by the particular e-bike they ride. E-bikers should always be vigilant of their surroundings, including weather conditions, road conditions, pedestrians, vehicles on the road, and other cyclists. E-bikers should err on the side of caution and wear helmets, even though that might not be required. They should consider wearing brightly colored clothing, making them more visible to others on the road. Riders should use a bell when passing other cyclists or pedestrians to ensure that their presence is known.

Riders should familiarize themselves with their e-bikes before jumping onto the road confidently. Users should take their time, perhaps practicing in an empty parking lot before venturing onto a busy road at high speed. Riders should become familiar with the different pedal-assist settings that many e-bikes have. E-bikes can accelerate rapidly, which can be dangerous for riders not used to sudden momentum changes. A lower pedal-assist setting could help users adjust to the e-bike’s increased acceleration. E-bikers should practice braking from high and low speeds, which may also be a new experience for those accustomed to traditional bicycles. And finally, if riders plan to ride where others are present don’t forget to use your helmets and have fun. For more bike safety tips see our Dolan Law Firm bike safety guide tips. 

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Johnson v Cedars-Sinai Medical Center: Equal Access to Businesses and Services  

Los Angeles Hospital Sued for Racism and Wrongful Death

On May 5, 2022, Chris Dolan and legal team of lawyers filed a lawsuit against Cedars-Sinai Medical Center (Case #: 22STCV14868) for failing to provide Equal Access to businesses and services for the wrongful death of Kira Johnson. 

Christopher B. Dolan says, “to gain access equally to businesses and services despite race, national origin, and any other discriminatory characteristic… we are using a lawsuit.” 

The lawsuit describes that despite signs of Kira Johnson bleeding internally and over the desperate pleas of her husband, she languished for hours without being readmitted to the operating room.

Nick Rowley, attorney, and member of the legal team, says Kira Johnson died from internal bleeding — nearly 90% of her blood was later found in her stomach. Her bladder had been lacerated and she hadn’t been sutured properly.

Charles Johnson IV said that “there is no doubt in my mind that my wife would be here today and be here Sunday celebrating Mother’s Day with her boys if she was a Caucasian woman.” 

For more information on the lawsuit see video or stories below:

Press Release Video:

Complaint:

Johnson v. Cedars-Sinai Medical Center Complaint 

Stories: 

 

 

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Celebrating AAPI Heritage Month

Remembering United States v. Wong Kim Ark

Written by Mari Bandoma Callado, Dolan Law Firm’s Senior Associate Attorney & Diversity, Equity & Inclusion Director

The Dolan Law Firm recognizes Asian American & Pacific Islander (AAPI)  Heritage Month and celebrates the achievements and contributions of the AAPI community to American history, culture, and society.

During the coronavirus pandemic, the rise in violence against AAPIs put a spotlight on the fact that AAPIs have long been the targets of racism and discrimination in the U.S., including through the law. Throughout history, AAPIs stood up against unjust laws and fought for significant constitutional protections. 

United States v. Wong Kim Ark is a landmark case that established birthright citizenship based on location through its interpretation of the Fourteenth Amendment and stated that anyone born in the U.S., excluding those born to diplomats, would be granted U.S. citizenship, regardless of the standing of their parents. 

Background

In the 1850s, Chinese workers migrated to the United States, first to work in the gold mines, but also to take agricultural jobs, and factory work, especially in the garment industry. Chinese immigrants were particularly instrumental in building railroads in the American west – over 10,000 Chinese laborers worked to complete the transcontinental railroad between 1863 and 1869. 

Alfred A. Hart photographs, 1862-1869

Photographic series documenting the construction of the Central Pacific Railroad, 1866-1869

 

Despite their contributions to the transcontinental railroad and agriculture, Asians, especially the Chinese, were the target of racial discrimination in the mid-to-late nineteenth century. 

The San Francisco Chronicle headline of August 27, 1873 reads in bold “The Chinese Invasion! They are Coming, 900,000 STRONG”.

 

In 1882, Congress passed the Chinese Exclusion Act which banned the immigration of Chinese laborers to the U.S. for ten years. This was the first immigration law that prevented immigration and naturalization based on race and nationality. In 1892, the Chinese Exclusion Act was extended for another 10 years by the Geary Act and it became permanent in 1902.  The Chinese Exclusion Act was not repealed until 1943.

First page of the US Chinese Exclusion Act

 

United States v. Wong Kim Ark

  • Wong Kim Ark was born in 1873 in San Francisco to Chinese parents who were legally domiciled residents of the U.S.  
  • He visited China in 1894 and was denied re-entry in 1895 due to the Chinese Exclusion Act.
  • He applied for a writ of habeas corpus and claimed that he was a natural-born U.S. citizen. 
  • The United States argued that since he was born to Chinese parents who were subjects of the emperor of China, then he was also a Chinese person and a subject of the emperor of China.
  • The District Court agreed with Wong Kim Ark – that he was a U.S. Citizen and therefore exempt from the Chinese Exclusion Act.
  • The United States appealed to the U.S. Supreme Court.
  • In his Supreme Court case, Wong argued he was a U.S. Citizen under the 14th Amendment which declared “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside” and therefore should be permitted entry to the U.S. since the Chinese Exclusion Act doe not apply to him.
  • Originally, birthright citizenship was meant to benefit persons of African descent, and formerly enslaved African Americans in particular. But the question is whether that principle applies to all people regardless of race—and the case goes all the way to the Supreme Court.
  • The U.S. Supreme Court reaffirmed his claim to citizenship, and since his citizenship was constitutionally protected, the Chinese Exclusion Act and other congressional acts did not apply and cannot override the Constitution. The Court’s decision defined the parameters for jus soil ensuring the citizenship of children born in the U.S. to non-citizen parents.  The concept is popularly known as birthright citizenship. 
Portrait of Wong Kim Ark, 1904. Getty Images

 

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Are My Therapy Records Protected in a Lawsuit?

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous, 

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter. 

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.”  If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident. 

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues. 

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New Era: The End of Forced Arbitration Agreements for Sexual Harassment and Assault Victims

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jessica R., who asks: I’ve been working at a big tech company in the South Bay for about three years now as a software developer. At the outset of my employment, I signed several documents contained in a hiring packet, one of which was an arbitration agreement. I didn’t understand what it was at the time. I just signed it because I thought that’s what I had to do to start work. After some research, I now realize I gave up my right to file a civil case, and any claim arising from my employment will be handled confidentially out of court. A few weeks ago, one of the newly hired managers began making inappropriate sexual remarks to me and one of my co-workers. The behavior has only gotten worse. HR doesn’t seem to take it seriously, either. I’m starting to regret ever having signed that arbitration agreement. Do I have any options, or am I going to be stuck with it? 

Hi Jessica,

Thank you for your question. We have some excellent news for you. Last month, on March 3, 2022, President Biden signed H.R. 4445 into law, ending forced arbitration of all claims of sexual assault and sexual harassment arising under federal and state law. The law is effective immediately nationwide. It applies to all past and future agreements, including arbitration agreements signed before the new law went into effect. 

The new law applies to any “dispute or claim that accrues on or after the date of the enactment of this Act.” Does a claim “arise” or “accrue” when the actionable conduct occurs or when a case is actually filed? It is unclear. Given the law is so new, its interpretation, thus far, has been limited. There is likely to be a wave of test cases over the next six months, however, seeking to further clarify the applicability of the new law to acts of sexual harassment and assault that occurred before March 3, 2022, and how cases involving sexual harassment and sexual assault occurring before, on, and after March 3, 2022, are to be treated. 

What does this mean for you and your circumstances?

  1. First, the arbitration agreement you signed when you were hired by the company three years ago appears to be covered under this new law.
  2. Second, the new law will likely apply to your claims as the sexual harassment your supervisor subjected you to appears recent – post-dating March 3, 2022 – and ongoing, which removes some doubt regarding the Act’s applicability to your claims.

Does this Act completely prohibit the arbitration of these types of claims?

No. Depending on the circumstances, an employee that previously signed an arbitration agreement may still wish to avail themselves of the arbitration process. The confidential nature of arbitration may appeal to some employees who don’t wish to have their names publicly associated with embarrassing or explicit sexual harassment or assault details.  This law places the power in the hands of the victim to choose which forum they prefer. Thus, should you decide to pursue legal action, you may, at your election, choose which forum you prefer, whether it be arbitration or civil court. If you choose to file sexual harassment claims in civil court against your employer and your supervisor, your employer is unlikely to be successful in compelling you to arbitration, despite your former agreement with them to do so.

Now, for the curveball. As the law is brand new in its application, it is less clear at present how cases will be handled that involve a mix of different claims, one or more of which involve sexual assault or harassment. Suppose for instance, you wish to bring a sexual harassment claim and claims for wage and hour violations. The law is silent on whether the wage and hour violations will be compelled to arbitration. Forcing a victim to pursue two related claims arising out of their employment in two separate forums is neither practical nor a cost-efficient option for them. Time will bear out how such cases will be handled. 

One final note for those of you out there that don’t fall squarely within the protections offered by new law. If you do end up in arbitration, there are some further protections for you as a Californian. On January 1, 2019, Senate Bill 820 known as the Stand Together Against Non-Disclosure (STAND) Act became law, prohibiting settlement agreements designed to silence employees from sharing factual information about their experiences of sexual harassment or sexual assault in the workplace. This law also applies to settlement agreements that contain a non-disparagement provision. Thus, despite the confidential forum of arbitration, if a settlement is reached prior to the hearing, your former employer cannot prevent you from discussing about what happened to you. Since 2019, the California legislature has taken it a step further. On January 1, 2022, Senate Bill 331 known as the Silenced No More Act was signed into law, expanding the prohibition to all claims of harassment, discrimination and retaliation under the Fair Employment and Housing Act (FEHA), including claims based on race, sexual orientation, disability, and many others. 

If you or someone you know has signed an arbitration agreement and experienced harassment, discrimination, or retaliation in the workplace based on their membership in a protected class under FEHA, contact an attorney such as the Dolan Law Firm to analyze your particular circumstances. 

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Navigating A Hit and Run Claim

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland: I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least.  The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):

What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?

There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?

There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments.
  3. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):

What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?

With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage.

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement.

These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?

In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?

Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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What You Should Know If You Are Injured as a Passenger on Public Transportation and The Defendant is a Government Entity

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from Julia L. in Pacific Heights, CA, who asks: I am a frequent city bus rider who rides to work every day. While on the bus last week, I felt a sudden acceleration through the intersection followed by a strong impact on the right side of the bus, where I sat. The crash surprised me because I was reading an email at the time of the collision. When I looked up, the traffic light facing the bus was red, and there was a truck smashed into the side of the bus. At first, I was okay, then felt an unbearable pain in my right arm. The paramedics informed me that I had a broken arm and needed immediate medical attention. I had surgery and stayed overnight at the hospital. I have significant medical bills and missed several days of work due to the accident. Although the police report is not ready, based on the statements I heard from eyewitnesses, it appears that the city bus ran the red light. I have heard special rules apply when pursuing a personal injury claim against government entities, such as a city bus. However, I am not sure what are my next steps. How do I file my claim against a government entity?    

Hi Julia,

This is a great question. Many people are unfamiliar with the unique requirements an injured person must comply with before filing a lawsuit against a government entity. Generally, the statute of limitations (the period when a lawsuit can be filed) is two years from the date of the accident or injury in California. However, special rules apply when a government entity is responsible for the injury. When pursuing a personal injury claim against a government entity, in your case the City or County, you must first file a special claim often referred to as an “administrative claim” with the government office or agency before you file in court.

It is important to note that there is a limited time in which you can bring an administrative claim against a government entity. Under California Government Code Section 910, you must file a claim against the government entity within six (6) months after the event or occurrence. It must be filed with the appropriate government office or agency. Please note that you must use the claim form of the particular government agency when filing a claim, as section 910 prescribes a list of the required information you must provide in your claim. Otherwise, the claim may be deemed invalid.   

After filing your administrative claim, the government entity has 45 days to accept or reject the claim. If the government rejects all or part of the claim or does not respond within 45 days, the injured person can file a lawsuit in court. If the government entity rejects the administrative claim, the injured person only has six months from the date of the rejection letter to file a lawsuit.

If you are successful in your claim against the government, you can seek financial compensation for your injuries, including medical bills, loss of income, property damage, and pain and suffering. However, the statute of limitations for government claims can be complicated. Therefore, we highly encourage you to seek legal representation to ensure that you comply with all the requirements as prescribed in Government Code Section 910.

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