Blog | Dolan Law Firm

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.

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.

Chris Dolan was called to act as a legal employment expert today on NBC news regarding the horrible workplace shooting at the VTA yard shooting that took place at San Jose Valley Transportation rail yard where a gunman opened fire and killed long time employees. When questioned about workplace safety, Mr. Dolan said that you have to “balance the rights of everyone…an employer has responsibilities to maintain a safe workplace. That includes that the workplace is free of violence.”

Our condolences go out to the families and friends of the victims identified by Santa Clara County Medical Exaniner-Coroner as: Paul Delacruz Megia, 42; Taptejdeep Singh, 36; Adrian Balleza, 29; Jose Dejesus Hernandez, 35; Timothy Michael Romo, 49; Michael Joseph Rudometkin, 40; Abdolvahab Alaghmandan, 63; Lars Kepler Lane, 63; and Alex Ward Fritch, 49.

Further information about this is on the link below.

CLICK HERE

Written by: Corinne Orquiola, associate attorney & Diversity, Equity & Inclusion Committee Member

Dolan Law Firm takes a moment to recognize #MentalHealthAwareness Month. This past year has presented many challenges that tested our strength and resiliency. Throughout the pandemic, those who have never experienced mental health challenges have found themselves in crisis for the first time. More than ever, we need to combat the stigma surrounding mental health concerns. Dolan Law Firm wants to assure those who are struggling that you are not alone.

More than 51 million adults in the United States face the reality of managing a mental illness everyday. Fewer than half of those adults who experience mental illness get the help they need facing common barriers to treatment including the cost of mental health care and insurance, prejudice and discrimination and structural barriers like transportation. The stigma and discrimination still surrounding mental illness causes so many to suffer.

Dolan Law Firm recognizes and supports all who struggle and this month is highlighting #Tools2Thrive- what individuals can do throughout their daily lives to prioritize mental health, build resiliency, and continue to cope with the obstacles of COVID-19. Mental health is essential to everyone’s overall health and well-being, and mental illnesses are common and treatable.

How do I seek help for mental health?

One way to check in with yourself is to take a mental health screen at MHAscreening.org. It’s a quick, free, and private way for someone to assess their mental health and recognize signs of mental health problems. Mental health conditions such as depression or anxiety are treatable and recovery is possible. Dolan Law Firm encourages you to take the time to take care of your mental health and to reach out to others and check in on them. End the silence around mental illness.

For more information, visit:

In California, people are protected against discrimination and harassment on the basis of actual or perceived disability – whether it is physical or mental. The disability discrimination attorneys at the Dolan Law Firm have represented numerous disabled people in achieving access and/or compensation when they have been treated unlawfully.

If you would like to learn more about your right to mental health accommodations at work, CLICK HERE.

Written by: Vanessa Deniston and Christopher Dolan

Lenora from California asks: Before COVID hit, I felt extremely stressed out at work and pushed to my limits emotionally, to the extent that I believed I might have an anxiety disorder. I regularly experienced panic attacks, feelings of dread and trouble concentrating, but never spoke to a medical professional about it. Unfortunately, working from home during the pandemic presented its own challenges from having anxiety around the virus itself to juggling a high-pressure job while caring for two young children attending school on Zoom. My symptoms seem to have worsened. I worry about how I will readjust once I am asked to physically return to the office and how my anxiety will affect my performance. Do I have any options that might ease my return-to-work?

Lenora, thank you for writing in about your sensitive issue. The COVID-19 pandemic can certainly be described as a global traumatic event, that has created unique stresses on many, including the exacerbation of preexisting mental health conditions. This is particularly acute with working mothers such as yourself who struggle with their mental health.

It is important to first understand that the general stress and anxiety we all feel from time to time regarding work, family life and yes, even the pandemic, does not constitute a disability under California law. Anxiety disorders, depression and related mental health conditions, however, can constitute disabilities under the law. If your employer employs five or more persons and if you are found to be qualified person with a disability under the Fair Employment and Housing Act (Cal. Gov. Code § 12900) you are entitled to reasonable workplace accommodations to help you perform you job. To be a “qualified person with a disability” you must meet the skill, experience, education and job-related requirements and be able to perform the essential functions of your job with or without a reasonable accommodation.

If you are found to have a mental health condition that effects your ability to perform your essential job functions, it is important to place your employer on notice as soon as possible if you wish to explore workplace accommodation options. Any notice and request for a workplace accommodation should in writing, when possible.

Once an employer receives the notice, the California Fair Employment and Housing Act requires the employer to engage in an interactive process with the employee to explore reasonable accommodations that would assist the employee in performing the essential functions of their job. The key word there is reasonable. What is considered reasonable? After the year we’ve just had, the answer to that question is not as clear as it once was.

The most evident shift is the work-from-home arrangement. Statewide regulations surrounding the COVID-19 pandemic, have essentially forced the hand of employers to experiment with work-from-home arrangements. Some businesses floundered, some thrived and others simply course corrected. Every job environment is unique, and every employer has had to adapt to the pandemic in its own unique way. While working-from-home accommodations may have been an unfeasible in early 2020, they may now be considered a more reasonable option if an employer was able to successfully adopt a work-from-home business model. Work-from-home options post-pandemic will not be feasible for all businesses, however, and you should not assume a work from home accommodation is necessarily reasonable one. An employer cannot be forced to extend accommodations that would cause their business to suffer undue harm or significantly disrupt their operations.

While working from home part or full time might be an option for you, reasonable accommodations can take many other forms. It may take experimenting with different reasonable accommodations before you and your employer settles on one or more that work best for both of you. Common accommodations for mental health disabilities may include flexible scheduling, intermittent leave for the employee to attend health appointments, frequent breaks, removal of distractions, a task reminder system, and/or a quieter work environment. While you can suggest reasonable accommodations unique to your situation during the interactive process, employers are not obligated to grant every accommodation you might propose. It can often be more difficult to find a workplace accommodation that works for both the employer and the employee when dealing with a mental health disability as compared to a physical disability, so it is important to stay flexible and open-minded when engaging in the interactive process.

It is also important to know, that while they may not elect to do so, your employer has a right to request medical authorization from your healthcare provider, which should indicate what medical restrictions you have, if any. This will assist your employer in determining what accommodations they can or cannot reasonably accommodate. The interactive process is a two-way street and both parties must engage in good faith. If you find your employer is willfully ignoring your requests for reasonable accommodations, refusing to engage in the interactive process or creating unnecessary obstacles for you during the interactive process, contact an attorney to fully understand your rights.

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

This week’s question comes from Giuseppe J. in Orinda: I run a small business. Having survived the worst of this pandemic, I am reopening my store soon. Some of my staff have received the COVID-19 vaccination, but not all of them. For the safety of all of the employees, and to protect the public and selfishly, my own potential liability and health, I would like to require all of my employees to be vaccinated in order to return to the worksite. Is that something that I can do without breaking the law?

Dear Giuseppe: Thank you for this important question. As vaccines become widely available and more businesses are reopening, this question will affect employees and business owners throughout California. Generally, pursuant to both federal Equal Employment Opportunity Commission (EEOC) guidance, as well as the California Department of Fair Employment and Housing (DFEH), an employer may require an FDA approved COVID-19 vaccine as a condition of employment or return to the workplace. However, there are several areas to pay special attention to and/or which may allow an exemption to individual employees.

Disability Accommodation

A qualified individual with a disability may be entitled to an exemption from an employer required vaccine policy. The FEHA requires employers to make reasonable accommodations to an employees’ known disabilities. If an employee objects to vaccination on a disability related basis, the employer must engage in an interactive process to reasonably accommodate the employee. If an accommodation is available that does not create an undue hardship on the employer, it must be provided to the disabled employee. However, if the employee cannot perform the essential functions of their position in a manner that doesn’t endanger the health or safety of others, even with reasonable accommodations, the employer may exclude the employee from the workplace.

Religious Accommodation

If an employee objects to vaccination on the basis of a sincerely held religious belief or practice, the employer must reasonably accommodate the employee. The accommodation analysis is not as stringent as with disability. Unless specifically requested by the employee, a religious based accommodation is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public. If the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace.

But I Don’t Trust the Vaccine — Employee Refusal

Some people are afraid of, or uncomfortable getting the vaccine. If an employee refuses to be vaccinated with an FDA-approved COVID-19 vaccine but does not have a disability reason or sincerely held religious reason for not being vaccinated, the employer does not have to accommodate that employee. The employee may be refused access to the worksite.

Employer Inquiry

As part of returning to work, employers may seek limited medical information. Employers may generally ask their employees entering a workplace whether they are experiencing COVID-19 symptoms and/or require proof of vaccination.

Requesting proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination since there are other unprotected reasons a person may not be vaccinated. However, because such documentation could potentially include disability related medical information, an employer should specifically omit any other medical information from that documentation. Importantly, if a mandatory vaccine policy is enacted at a workplace, information obtained would be considered a confidential medical record and that information must be kept private and maintained separately from regular personnel files.

The scope of permissible inquiry may change over time. As cases decrease or increase, these standards could change — employers should rely on the CDC and other public health authorities for guidance.

If you would like further guidance as to the DFEH or EEOC, the following links may be helpful.

DFEH Vaccine Guidance CLICK HERE
EEOC Guidance CLICK HERE

Thank you, Giuseppe, for the opportunity to discuss this important and emerging legal issue.

Written By Christopher B. Dolan and Allison L. Stone

Most of California’s approximately 6 million students, grades K-12, have not been in the classroom since March of 2020 due to COVID-19. Indeed, Governor Newsom has come under significant pressure to get California’s public schools open. Everyone – teachers, parents, and students alike – are eager to get students back to in-person school as soon as possible. There is little dispute about that. The question is: How do we do this safely?

Many teachers are still not vaccinated. The strong California teachers’ unions have maintained that teachers getting vaccinated is necessary to reopen schools. However, Governor Newsom and other lawmakers disagree.

Similarly, guidance from the Centers for Disease Control and Prevention (CDC), does not require that all teachers be vaccinated to reopen schools. Rather, the CDC advises that schools can safely open for some in-person learning, even with moderate levels of virus transmission in the community, by following other safety measures including wearing masks, maintaining physical distance, keeping smaller class sizes, providing personal protective equipment to schools, and increasing availability of testing facilities.

With that said, the CDC has asserted that teachers and school staff should be included in phase 1b of vaccination programs along with frontline workers and those age 75 or older. Likewise, on March 2nd President Biden announced that he was directing all states to prioritize teachers, staff and childcare workers for the COVID-19 vaccination, with the goal of them obtaining their first shots by the end of March.

However, states ultimately make the decision on what groups are prioritized for receiving the COVID-19 vaccine, and every state is handling this CDC guidance differently. Teachers and other school staff members are on many state priority lists, but certainly not all of them. As of the beginning of March 2021, the available data suggests that some or all teachers are eligible to receive the vaccine in only 34 states, the District of Columbia, and Puerto Rico. This has left many teachers across the country feeling abandoned, undervalued, and demoralized by the vaccine rollout.

Recently, groups of parents in California have been demanding that schools reopen without delay. Based on the CDC’s guidance, various school districts throughout California are eagerly working on plans to bring students back into classrooms.

However, teachers’ unions have said that teachers are simply not comfortable returning to school buildings until they are fully vaccinated. Furthermore, continued research on how children respond to the vaccine is needed and it will still be quite some time before many students can get vaccinated. The risk to teachers may be even greater for teachers of younger students that neither understand social distancing nor understand the need to keep masks on. The lack of vaccines for younger children is therefore a serious consideration for many teachers faced with the question of when it will be safe to return to in person learning. Teachers are dying from COVID-19 in states that have hastily reopened. Thus, some unions—including in California—contend that even after teachers and staff are vaccinated, virus transmission must decrease to ensure a safe return to in-person teaching. Importantly, no matter how much we all want to reopen schools, California has limited power to do so unless unions agree.

Research shows that not just teachers, but also many parents in California are extremely concerned about a hasty reopening. To date, Governor Newsom has not stated whether he would consider forcing schools to reopen or using his emergency powers to suspend local bargaining.

As of March 8th, San Francisco officials plan to reopen classrooms for younger students starting April 12, under a tentative agreement reached with the teacher’s union. The agreement was announced after months of debating how and when children and teachers could safely return to in-person school. It is still unclear how many of the district’s students will be able to return to in-person school before the end of the school year in June.

As of March 9th, after eight months of negotiation, Los Angeles Unified School District and its teachers’ union reached a tentative deal to reopen in-person instruction starting in mid-April. This agreement is subject to approval by the LAUSD school board and ratification of the membership of the union, United Teachers Los Angeles.

Unfortunately, there is simply no quick fix as to when and how to safely reopen schools. While the path to reopening schools continues to be anything but clear, the good news is that on March 11th, President Biden promised rapid vaccination progress, stating that all adult Americans will be eligible for the vaccine by May 1st and announced the launch of a national website to facilitate those vaccinations.

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

Tony from Belvedere asks: Do I have any right to privacy if others use photos of me that I posted online to social media or for other purposes since it’s without my permission?

Dear Tony: This is an interesting question, and one that evolves in the age of Facebook, Twitter, Tik Tok and other social media sites that people use to post photos and videos of themselves, their families and friends. Once you post a photo or video of yourself online, do you still own it? Do you still have any control over it? Can you stop others from using your photos and videos if they don’t have your permission to use them?

There is a case out of San Diego, a lawsuit that was filed last month, which can provide some real-time insight into these issues. In June 2020 a woman named Amber Lynn Gilles went into a Starbucks location to get some coffee. She was not wearing a mask and refused to put one on while inside the store. The barista who was serving her, Lenin Gutierrez, explained the store’s mask policy to her and politely told her that he could not serve her unless she put on a mask. She again refused, threw a fit, called the employees and other customers, “Sheep!” and other derogatory names and then left the store in a huff without a coffee.

Later, Ms. Gilles put up a post on her public Facebook page which included a photo of Mr. Gutierrez with a caption that misspells the barista’s name, “Meet lenen [sic] from Starbucks who refused to serve me cause I’m not wearing a mask. Next time I will wait for cops and bring medical exemption.” She attempted to publicly shame the Starbucks employee with her Facebook post. That plan backfired spectacularly.

While Ms. Gilles’ Facebook post did go viral, it inspired a man named Matt Cowan, who had never met Mr. Gutierrez, to start a GoFundMe page for Mr. Gutierrez’s benefit. Mr. Cowan wrote on the Go Fund Me page that it was for the benefit of a local barista’s, “honorable effort standing his ground when faced with a Karen in the wild.” The name “Karen” has morphed into pejorative vernacular denoting a typically white, suburban, entitled female who throws a very public and energetic tantrum beyond the scope of what might be construed as normal. Mr. Cowan’s Go Fund Me page also went viral and it eventually raised over $100,000 for the Starbucks barista, who received all of the money minus taxes owed.

Ms. Gilles was upset that so much money was raised for the Starbucks’ barista. She demanded half of the money because, after all, there would not have been a Go Fund Me for the benefit of Mr. Gutierrez without her. Her demand for money was refused, so she filed a lawsuit against Mr. Cowan, the person who started the Go Fund Me page. Part of her lawsuit stems from the fact that Mr. Cowan had included a screenshot of Ms. Gilles’ Facebook post in the Go Fund Me page.

In her lawsuit Ms. Gilles claims that Mr. Cowan had misappropriated the screenshot of her Facebook page and that he then used the image without permission and for the purpose of publicly painting her in a negative light, which she alleges is an invasion of her right to privacy. Amusingly, both parties to the lawsuit turned to Go Fund Me to crowd source their legal fees. Ms. Gilles has raised $6,000 while Mr. Cowan has raised $14,000 using the headline, “Help, I’m being sued by a Karen.”

These facts raise several issues ranging from Ms. Gilles’ purported right to privacy in a public Facebook post to Mr. Cowan’s First Amendment right to freedom of speech in posting to a Go Fund Me page about Mr. Gutierrez’s plight. Noting that Ms. Gilles’ lawsuit is subject to being dismissed pursuant to an Anti-SLAPP motion (a mechanism in the law designed to prevent people from being sued for speaking out on issues of public concern or significance), Eric Goldman, a professor at Santa Clara University School of Law, balances the rights of each party to this lawsuit: “The publicity rights are limited by the First Amendment and I think that the First Amendment ought to apply here.” Goldman goes on to suggest that Ms. Gilles will lose her lawsuit: “I really think it will be an easy case. That there was no way to tell the barista’s story without talking about what happened.” So it seems clear that in this case, Ms. Gilles will not be successful in claiming a right to privacy in a public Facebook post about the same issues that Mr. Cowan posted about on his Go Fund Me page.

As an aside, Ms. Gilles also recently sued San Diego grocery store Sprouts for refusing service to her while she refused to wear a mask, claiming a mask exemption through the Americans with Disabilities Act. Dismissal of that case for failure to serve the Defendant is imminent.

CHIEF LEGAL COUNSEL CHRISTOPHER DOLAN, ATTORNEY FOR THE PLAINTIFF, CALLED THE DECISION “A MAJOR VICTORY FOR CONSUMERS THROUGHOUT THE STATE.

In a landmark decision affecting hundreds of millions of Amazon customers, on April 26, 2021, the California Appellate Court ruled that Amazon can be held liable for injuries caused by defective products sold through Amazon.com.

In the case of Loomis v. Amazon.com LLC, The California Court of Appeals, Second Appellate Division ruled that Amazon can be held liable for injuries caused by an exploding hoverboard, manufactured in China, which was purchased on Amazon.com and shipped directly from the manufacturer to the Amazon shopper. San Francisco attorney Christopher Dolan, who represents the plaintiff and argued the appeal, called the ruling “a major victory” for consumers throughout the state.

“Amazon can’t escape liability for defective products it sells to its customers by claiming it is not involved in the marketing, sale and distribution of goods and is just an ‘advertiser,’” he said. “To claim otherwise is just a plain lie.”

In his successful appeal, Dolan argued that Amazon, just like the brick and mortar stores it has put out of business, gets paid a percentage of the sales price on every product sold along with listing fees, handling fees, return fees, etc. “If this hoverboard had been sold at a local mom-and-pop sporting goods store, they could be held liable for the injuries caused by its defects,” he said. “Amazon shouldn’t’get a pass by claiming that they are just a ‘digital matchmaker.’”

The case originated after a consumer purchased a hoverboard that exploded in her home, causing her severe injuries and extensive damage to her home. Kisha Loomis, a resident of Oroville, California, bought her son the hot toy of the season on Amazon in December of 2015. The hoverboard was manufactured by the SmileTo Company in China and sold under the pseudonym TurnUpUp, through Amazon. Before purchas-ing the item, Ms. Loomis had searched Amazon.com for hoverboards, reviewed the selections displayed by its algorithms, and read the ratings and reviews.

Ms. Loomis’ purchase was one of over 380,000 such hoverboards sold by Amazon in Q4 of 2015. Before the product had shipped, and unbeknownst to Ms. Loomis, Amazon had been tracking the growing incidence of hoverboard battery fires and had taken down all hoverboard listings because of concerns for fire danger in the USA and UK. Despite this knowledge, the company allowed the product to be shipped from China to Ms. Loomis and failed to warn her of the danger. It was opened by her son on Christmas and, after less than a week of use, it exploded while charging in a bedroom. Ms. Loomis was severely burned by the rocket-like battery explosion as she attempted to throw the burning toy from her home. The Chinese manufacturer, SmileTo, as well as its U.S. Distributor, Forrnix Technologies, had gone out of business, leaving only Amazon to be held accountable for the injuries to Ms. Loomis and the damages to her home. Amazon persuaded a Los Angeles judge that it was not a seller of products and that it was merely an “online advertiser” and had the case dismissed. Dolan filed an appeal, arguing that the law needed to keep up with the changing digital marketplace and that online retailers, just like brick-and-mortar stores, were an integral part of the marketing, distribution and sales of products and should be held to the same legal standards. The Court of Appeals agreed, stating,

“Amazon thus must face strict liability for Loomis’s fiery encounter with the hoverboard she bought from Amazon’s site. Imposing this duty on Amazon creates financial incentives that back up Amazon’s good words about its concern for customer safety.”

Ms. Loomis, upon hearing the decision stated:

“This restores my faith in the belief that even a single person like myself, through the courts, can get justice and make a difference in this world where we feel overwhelmed by the thought of fighting a Giant like Amazon. I hope this makes the world a safer place so no one else has to go through what my family went through.”

Dolan heralded the decision. “This case will set precedent not only in California but, hopefully, throughout the nation, and it forces Amazon to make sure the products it sells are safe, something it should be doing already,” he said. The case will now be sent back to the LA Superior Court where discovery will continue; a trial date is expected to be set in 2022. Christopher Dolan is available for immediate interviews about the case.
You may reach him at 415-421-2800 or chris@dolanlawfirm.com

Written By: Christopher B. Dolan and Katelyn P. Dembowski

Tess from San Francisco asks: President Biden just announced new executive actions on gun control. What do these actions mean? Isn’t Congress supposed to make these laws? How will this impact gun laws in California?

Dear Tess: These are really pressing questions. As the number of distributed COVID-19 vaccines has surpassed 183 million, we have seen many parts of the country, and California, return to normalcy. Yet with guidelines softening and the pandemic coming to a close, we have found ourselves facing another epidemic: a resurgence of mass shootings and gun violence.

President Biden’s Executive Actions

On April 8, 2021, President Biden announced a series of executive actions he would be taking to curb gun violence after two mass shootings in Georgia and Colorado left 18 people dead. The executive actions are only small steps towards a bigger goal for the Biden Administration. Aggressive and comprehensive federal regulations, like an assault weapons ban, strengthening background checks, and removing liability immunity from gun manufacturers are still in the hands of Congress. For now, President Biden has laid out the following actions, among others, that his administration will be taking:

The Justice Department will issue a proposed rule to help stop the proliferation of “ghost guns.”

Ghost guns are firearms that are assembled from kits, usually without any serial numbers, that cannot be traced. According to Everytown for Gun Safety, such firearms are easy to assemble and comparatively inexpensive: an AR-15 build kit costs as little as $345. The use of ghost guns has increased exponentially in places with strict gun laws like California. The Justice Department will issue a proposed rule within the next month that subjects buyers to background checks and requires the components to have serial numbers that allow them to be traced.

The Justice Department will issue a proposed rule to make clear when a device marketed as a stabilizing brace will be subject to the requirements of the National Firearms Act.

On March 22, 2021, an armed assailant walked into a King Soopers supermarket in Boulder, Colorado and killed ten people. The shooter was using an AR-556 semi-automatic pistol with a stabilizing brace, making the gun more stable, accurate, and more like a rifle. President Biden’s order will make these stabilizing braces subject to the National Firearms Act, requiring registration with the federal government and a $200 fee.

The Justice Department will publish model “red flag” legislation for states.

“Red flag” laws permit police officers and family members to petition a state court to order the temporary removal of firearms from a person who they believe may present a danger to others or themselves. A 2016 study by Law and Contemporary Problems analyzed data from 762 guns removed under Connecticut’s “red flag” law, finding that for every ten to eleven guns seized, there was one averted suicide. “Red flag” laws used in other states could potentially mitigate some gun violence.

For a comprehensive list of President Biden’s actions, please see the White House Fact Sheet.

Congress’s Role

While President Biden’s executive actions will offer federal rules and guidelines for the states to follow, Congress will have to pass any meaningful gun control legislation. In 1994, Congress enacted the U.S. Assault Weapons Ban of 1994. The law put a ten year ban on the manufacture of semi-automatic firearms for civilian use as well as “large capacity” ammunition magazines. The ban expired in 2004 under President Bush.

A new bill introduced last week would have a similar effect. The Assault Weapons Ban of 2021, introduced by Representative Cicilline, RI and Senator Feinstein, CA will prohibit the sale, manufacture, transfer, and importation of 205 “military-style assault weapons” and magazines that hold more than 10 rounds of ammunition. This bill does not affect guns already in possession of gun owners and it exempts more than 2,200 types of firearms for hunting, household defense and recreational purposes. Democrats in Congress are adamant about passing gun control legislation while acknowledging rights under the 2nd Amendment. “We have to respect people who are gun owners.” stated Rep. Cicilline, “We have a right, too, to ensure that people can live a life free from gun violence.”

Should this bill pass both the House and the Senate, President Biden would sign it and it would become a national law.

Impact on California

California has some of the strictest gun laws in the country. California already requires universal background checks for all gun sales, limits ammunition magazines to 10 rounds, requires a 10-day waiting period before a buyer can take possession of a firearm and banned military-style weapons decades ago. California further requires gun owners to store guns unloaded and in places not accessible by children or adults prohibited from possessing a gun.

President Biden’s executive actions will change very little about gun regulation in California. Many of the actions he announced are already law in the state, including a “red flag” law, ammunition limits, waiting periods, rifle regulations, and handgun safety training. However, ghost guns have been linked to many shootings in California because of the more stringent gun laws. There is hope that the proposed federal rule will help decrease the circulation and use of ghost guns in California.

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