Civil Rights | Dolan Law Firm

Working Outside in High Heat

Written By Chris Dolan and Emile Davis

Today’s question come from Gabriel in Oakland: I work as the only parking lot attendant in the East Bay. This year, it has been over 100 degrees many times and I don’t see signs of it cooling any time soon. There used to be a booth where I could get out of the sun, but they took it down to make more spaces for cars. Now I work outside without any shade. There isn’t any water either. I told my manager, but he told me if I can’t handle it, he will find someone who will. Now, I don’t say anything, but it doesn’t seem right. Can they do that?

Hi Gabriel,

I am sorry to hear about your working conditions. As you have experienced, working outside, particularly in the heat, is difficult and can affect your health. In California, there are regulations administered by the California Occupational Safety and Health Administration (Cal/OSHA) which lay out the requirements which employers must maintain for the health of their workers who, like you, work outside. In particular, as it relates to working outside in the heat, California adopted the Maria Isabel Vasquez Jimenez heat illness standard-California Code of Regulations, Title 8, Section 3395.

The first thing you asked about was shade. Section 3395 requires the employer provide access to shade when the temperature exceeds 80 degrees Fahrenheit. The employer is required to maintain one or more areas with shade while employees are present. The shade can either be open to the air or an inside area with ventilation or cooling. There needs to be enough shade to accommodate all the employees on break at the same time. They also have to be able to sit normally, without having to be in physical contact with each other. The shady area needs to be located as close as possible to where the employees are working. Importantly, employees are allowed and encouraged to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating.

In your case, since you work alone, the old booth seems as though it would have been sufficient. However, since they took it down, it appears your employer is not in compliance with the regulation.

Since you are working in heat over 100 degrees, it is worth noting that in certain specific industries, there are additional High-heat procedures where the temperature reaches 95 degrees Fahrenheit. Those high heat procedures ensure there is effective communications with supervisors, observation of employees, pre-shift meetings to encourage hydration and inform employees of their rights to take a cool-down rest when necessary. There are even more procedures within the agricultural industry, but these high-heat procedures are required in the construction, landscaping and oil/gas extraction industries, as well as certain delivery drivers.

You also mentioned the lack of water at your worksite. The same regulations address the water issue. It is required that employees have access to fresh, pure, cool drinking water. It must be provided free of charge by the employer. It should be located close to where the employees work. However, if there is not suitable plumbing, the employer can provide the water, at the beginning of the shift, or incrementally throughout the day. But, they need to provide enough for each worker to have one quart of water each hour of their shift. It seems they are not doing that for your worksite.

You asked if they can get away with their failure to provide shade or water. That is an excellent question. You opposed the conduct and were seemingly told that if you didn’t like it, they would find a different employee instead. If your employer terminated you because you asked for shade and water as they are required to provide, that would be a form of retaliation. Section 3395 also requires the company to train employees of the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid as well as the employees’ right to exercise their rights under this standard without retaliation.

It is generally a good idea to make any requests to your employer in writing. If you find that you are retaliated against for making a complaint regarding workplace safety, whether under this section, or any other, that you contact an experienced employment lawyer such as the Dolan Law Firm.

Written By Christopher B. Dolan

This week’s question comes from Frank T. in the Mission District: I got a jury summons in the mail. Why do I keep getting them? I don’t want to sit on a jury and take time away from work.

Frank,

I know this is a sentiment shared by many right now. The right to trial by a jury of one’s peers is enshrined in the Bill of Rights that was formed at the time of the birth of our Nation. When The Colonies were under British rule, citizens had no right to have members of their community decide their fate. Justice had become politicized, and it was administered pursuant to British law, and as a manner of repression, as the colonists were considered British subjects. British law was often unjust and unfair to the Colonists and failed to recognize the realities of living in the New World. This was one of the many injustices that spurned the birth of our Democracy. Trial by jury was, and largely remains, an American institution with most countries not offering jury trials to their citizens.

The right to trial by jury was established under and through the Seventh Amendment to the Bill of Rights. As such it was one of the original rights for which a war was fought, blood was spent, and lives were sacrificed. The right to trial by jury is also guaranteed by Section 16, of Article One, of the California Constitution.

What was once considered a fundamental right and honor is now perceived by many as an annoying and disruptive inconvenience. Not to minimize the impact that you feel jury service has upon your personal circumstances, too many of us now take for granted our democratic freedoms, rights and responsibilities. Jury service is an apolitical right and in today’s environment where the courts have become more politicized, the fact that a jury pool is drawn from a broad cross-section of our community is perhaps one of the most apolitical aspects of our Democracy.

As your name, Frank, suggests that your pronoun is male, and you reference your spouse with the pronoun he, I deduce that you are in a same sex marriage. (If my assumption is incorrect, please forgive me.) I want to put this into some perspective: imagine if you or your husband were accused of a crime, were the victim of a hate crime, or been deprived a civil right based upon your sexual orientation. If you lived in another state, not as progressive as California, the judge might be an elected or appointed official who is homophobic, or against gay marriage, and she/he would be the sole decisionmaker on your case. That prejudice could very well affect the outcome of your case and be demoralizing. Likewise, no members of the LGBTQIA+ community to heed the call to jury service, you would not receive a jury of your peers.

No one knows the case you have been summoned for as of now. Jurors are randomly selected from DMV records, voting rolls and other public sources of information and, until the day you show up at the courthouse, there is no way to know what type of trial, or what type of issue, is involved. In San Francisco, if you are summoned to 400 McCallister Street chances are that it is a civil trial involving disputes between two parties, two businesses, or an individual seeking justice against much more powerful interests such as corporations and/or the government. If you are summoned to 850 Bryant Street, it is most likely a criminal case.

Since COVID began, I have tried cases to verdict, one in September 2021 against a police department and officer where there was a claim of unlawful and excessive use of force resulting in a shooting and one against an insurance company for injuries suffered in a collision. I selected juries, presented the facts, and received verdicts in favor of my clients who otherwise would never have received justice. Had jurors not shown up, my clients would never have had their chance to receive fair and impartial justice. We would never have been able to stand up to the police and, quite possibly, given the judge and venue in another state, we would not even have had a chance, much less won.

The right to trial by jury is already threatened by big monied interests that don’t want trial lawyers like me to balance the power dynamics. Organizations which I am proud to be a member of, such as the American Association of Justice, and the Consumer Attorneys of California, fight diligently and help preserve the right to trial by jury.

Many jurors, originally reluctant, after serving their jury service are glad they did it. They feel proud of being a group of twelve (or six in Federal Court) who participated. I hope you take the call to service and have a meaningful experience. Lastly, just because you are called for jury duty doesn’t mean you will serve. Many times, jurors are not needed as a case gets resolved or settled. Even if you are called into court, most jurors do not get selected, as often more jurors are called then end up being needed.

I hope this helps you see things in a different light. Without Jurors, the light of democracy dims remarkably.

Today, the United States Supreme Court stood for what is just for Indian Country as the ICWA (Indian Child Welfare Act of 1978) was upheld by a 7-2 vote. The ICWA recently came under attack in Haaland v. Brackeen (2023), a case brought by the states of Texas, Louisiana, and Indiana, as well as a number of individual claimants, seeking to establish the ICWA as unconstitutional.

The ICWA is a 45-year-old federal law that protects the well-being and best interests of Native children, their families and their communities. The ICWA prevents the arbitrary removal of Native children from their homes by public and private agencies. The ICWA recognizes Native families and tribal communities as the dominant authority for determining how to protect their own children. Recognized by child welfare experts as the gold standard in child welfare practice, the ICWA has for decades helped tens of thousands of Native children and families remain intact, as well as find fairness and healing in state child welfare systems. The ICWA was established in response to the United States government’s long historic campaign of destruction and erasure of Native peoples and communities, which in part, included the forceful removal of Native children from their homes and placement in non-Native homes without consent or justification. This win recognizes the importance of preserving the culture, communities and existence of Native peoples.

Written By: Chris Dolan

James from Marin County asks: I just bought a house built in the 50’s. I have undertaken a significant amount of renovation both inside and outside. The home has a nice yard and a pool. The pool needs some work, and I am concerned because sections of the fence around the yard have fallen into despair. My neighbors have small kids and I want to be responsible and make the pool safe as I undertake the work. What guidelines do I have to make the pool safe?

Summer is upon us and each year it’s important to revisit safety laws and best practices in regard to residential swimming pools and spas. Drowning is California’s second leading cause of death for children aged 1-4 and even nonfatal drowning injuries can result in long-term disabilities from irreversible brain damage. Since most drownings in young children occur in home swimming pools, it is especially important that owners of residential pools take proper precautions to keep unaccompanied children out and, in case a child does enter a pool unaccompanied, to prevent injury by the suction of pool pumps and filters.

To this end, the state of California has long set very clear requirements for pool safety, embodied in the Swimming Pool Safety Act, California Health and Safety Code (CHSC) Sections 115921 through 115829. As of January 1, 2018, the state legislature has updated these requirements in the hopes of further reducing home pool drownings. This column will spell out the differences in the updated law so that residential pool owners have the latest and most complete safety information available.

As a preliminary matter, the Swimming Pool Safety Act applies only to in-ground and aboveground structures over 18 inches deep intended for swimming or recreational bathing situated on the property of a single family home. CHSC Section 115921 provides a non-exhaustive list of regulated structures, including swimming pools, portable and non-portable hot tubs and spas, and non-portable wading pools; for the purposes of this column, I will refer to all such structures as “pools.”

One significant impact of the new amendments to the Swimming Pool Safety Act is that it extends state pool safety requirements to single family homes in all municipalities, eliminating previous exclusions for homes within municipalities that issued their own, potentially conflicting, local swimming pool ordinances. Since the state now mandates all municipalities to participate, the amendments provide for state reimbursement of any resulting added costs incurred by local governments. It is important to note that this law still does not apply to public pools, pools at multifamily residences, or hot tubs equipped with compliant locking safety covers.

The main effect of the new amendments, however, is to double the required drowning prevention safety features needed to secure a permit to build or remodel a pool at a single family home. Since 1997, permits issued for pool construction have required residential pools to be equipped with at least one of seven drowning prevention safety features; on implementation of the new amendments, each pool construction must now include two of these enumerated safety mechanisms for extra protection in case one fails. As before, drowning prevention safety features must be inspected by a local building code official pursuant to final approval of the permitted pool construction, as well as building inspection reports conducted for real estate transfers. CHSC Section 115924 requires every pool construction contractor to inform consumers of the Act’s requirements.

CHSC Section 115922 provides an updated list of eligible drowning prevention safety features:

a total pool enclosure isolating of the pool from the home;
removable mesh fencing in conjunction with a self-closing, self-latching gate capable of being locked with a key;
a manually or power-operated safety pool cover compliant with American Society for Testing and Materials (ASTM) Standard F1346-91;
a continuous audible exit alarm on any door providing direct access to the pool;
a self-closing, self-latching function with raised release mechanism on any door providing direct access to the pool;
an alarm meeting ASTM Standard F2208 placed in the pool to sound upon accidental or unauthorized entrance into the water; or
other protection independently verified to provide at least the same degree of protection.

Specifications for approved fencing and gates can still be found in Section 115923; critically, enclosures must be a minimum height of 60 inches, with no more than two inches between the bottom of the enclosure and the ground, no gaps that would permit passage of a sphere of four inches, and no outside surface with features that could serve as handholds or footholds for a child of 5 years old or less to climb over. Also preserved from previous iterations of the Swimming Pool Safety Act, Section 115928 continues to require every new or remodeled pool to have at least two hydraulically balanced suction outlets per recirculation pump secured with anti-entrapment grates and separated by at least three feet that prevent a child being sucked into a vacuum that would be caused by a single drain.

Following California’s comprehensive pool safety regulations is a vital step toward preventing hundreds of unnecessary deaths and disabilities caused by accidental drowning. Here’s to a safe and happy swimming season!

Written By Chris Dolan and Aimee Kirby

This week’s question comes from Laurie in San Francisco, CA, who asks: I want to understand why attorneys are not interested in my daughter’s case. Fellow students physically bullied my daughter for years in middle school. When it started happening, I thought the best approach was to let the kids work it out amongst themselves. When it poured into her second year in middle school, I talked to her teachers about it, and they all indicated they didn’t see anything happening in their classrooms. By her last year in middle school, it got really bad. She withdrew from us at home, was very anxious, and I believe she was receiving threats on social media. She wouldn’t talk much about it, and I think the teachers telling us that they didn’t see it happening made her feel like maybe it was not occurring. My family and I decided to move school districts so she could start fresh at a high school without bullies. She has been doing much better at her new school this year and will be a Sophomore next year. As she has gotten some distance from what happened, she has told me more details of what occurred for three years in middle school.

My daughter told me that three girls, whom she refused to name, would follow her in the hallways at school weekly and push and shove her while laughing at her. The girls would make fun of her clothing and hair (my daughter is half African American and half white in a predominately white school). They would also find her during lunch and get people to join them in making fun of her. She also received texts and calls from various numbers she didn’t know. My daughter didn’t save these horrible, mean texts, and we have no way to prove this happened. Is it too late to sue for what happened three years ago? Attorneys told us we missed a deadline in the law and refused to take the case.

Dear Laurie,

I am so sorry to hear what your daughter endured during middle school. Many dismissed bullying when I was in school as “kids being kids.” Today bullying is finally getting attention throughout our country. With the advent of social media, bullying has taken on a new form, far from prank calls and toilet papering houses to disturbing behavior that can hurt children very deeply. These cases are just starting to get the justice they deserve as everyone slowly abandons the “kids being kids” mentality.

The first thing an attorney will do is determine the Statute of Limitations for your cause of action. The Statute of Limitations for a civil case dictates how much time you have to settle your case or file a civil lawsuit. You would have two separate cases here. One case would be against the school district for negligent supervision of your daughter, and the second would be against the parents and children who did this. Depending on the facts, sometimes the actions of a minor can be attributed to the parents. Both cases have different Statutes of Limitations.

Claims and lawsuits against Government Entities are complex and generally can only be handled with an attorney. When you sue a Government Entity, like a School District, you must give them notice of the claim within six months of it happening and file a civil lawsuit generally within one year of it occurring. If you fail to file the Notice of Claim within six months, you can seek relief from the government entity and, if denied, the court if you are within one year of the act happening. There are exceptions to these requirements for childhood sexual abuse victims because the law recognizes that children often suppress these memories until adulthood as a coping mechanism.

If you are not suing a Government Entity, the general statute of limitations for personal injury is two years from the date of loss unless the child is a minor. Then you have 18 years plus two years for the Statute of Limitations to expire. That means that you would have the possibility to sue on your daughter’s behalf the parents and the children that did this. The case appears to have lapsed against the school district if a year has passed since the last bullying incident.

However, when considering what actions to take in cases involving children, we always counsel our client on what the recovery may be and what the litigation would require of the minor and their family throughout the litigation. In this case, the causes of action against the minors and parents would be intentional torts. That means they are not an accident but an intended act. The problem with intentional torts is that there is no insurance for the acts, so these parents would have to have liquid assets to make any settlement offer. Without applicable insurance, any recovery will be difficult.

The other consideration is the mental well-being of your daughter. You could option filing in small claims court, which has a cap on the award amount. However, in that situation, your daughter would still have to appear in court, tell the judge what happened, and deal with facing these children, perhaps again. Filing in Small Claims Court limits in-person depositions and written discovery. The litigation experience is challenging for children, so we only suggest it when the financial recovery is significant and can help them in their future. It is a balancing act that only a parent can decide for their child as to whether filing makes sense. In your case, there was a limitation on suing the School District because the statute had expired to file. Additionally, the lack of insurance to cover the minors and the parents, and the amount you would be awarded, are grounds for which the attorneys you have spoken to may have decided not to move forward with representing you.

I am so sorry this happened to your daughter and that the law, both criminally and civilly, doesn’t have the justice she requires. I hope the distance from these kids and the new school help your daughter and your family heal.

Written By Chris Dolan and Eric St. John

This week’s question comes from Barry from San Francisco, who writes: Hello, I live in San Francisco, and it is starting to warm up. Whenever summer comes around, fireworks go off in my area. I was wondering, are fireworks legal in the Bay Area?

Dear Barry,

Thank you for writing in with your comments and questions. The simple answer is that fireworks are illegal in California and the Bay Area. There can be both criminal and civil penalties for possessing them or setting them off, especially if someone or something gets damaged in the process.

Digging into firework laws a bit more, we learn that in California, there are two categories of fireworks recognized by the law: “dangerous fireworks” and “safe and sane fireworks.”

Dangerous fireworks shoot, explode, move along the ground, or are moderate in size. These types of fireworks include Roman candles and firecrackers. Dangerous fireworks are always illegal in the Bay Area and all of California. The only exception is for licensed pyrotechnic operators who receive formal approval to put on a firework display, typically around holidays like the Fourth of July.

Safe and sane fireworks, such as small sparklers or snap caps, are small and do not explode, move, or fly. The California Department of Forestry and Fire Protection puts out a complete list of safe fireworks. Only licensed retailers can sell safe and sane fireworks, from June 28th to July 6th each year.

Firework laws in the Bay Area vary from county to county, but, in essence, all types of fireworks are illegal in all counties in the Bay Area. It is always illegal to give any fireworks, even safe and sane, to anyone under the age of 16. Solano and Sonoma County have an exception for safe and sane fireworks around the Fourth of July only.

There can be criminal and civil trouble for using fireworks, especially if someone gets hurt.

Criminally, violating firework laws carry penalties of up to 1 year in county jail and a fine of up to $1,000. These criminal penalties can increase to a felony offense if someone is in possession of a large quantity of dangerous fireworks or uses them in an unsafe manner. A felony firework offense can result in up to 3 years in State prison and fines of up to $50,000. Various other charges tend to attach to firework cases, including dangerous or reckless burning, disturbing the peace, and even arson.

Civilly, if fireworks harm someone, they may have legal recourse through a personal injury lawsuit. This would involve making a claim that someone else’s negligence or intentional conduct using fireworks caused injuries.

So why are fireworks illegal, and what is this fuss about? Well, for many people, fireworks are a fun toy to play with. The reality is that fireworks are explosive, flammable, hazardous, and can cause life-altering injuries, even death. All it takes is one lapse of judgment to end up with lost appendages or an uncontrollable fire.

According to the National Fire Protection Association, in 2019, U.S. emergency rooms treated over 10,000 individuals for fireworks related injuries. The injuries included burns to all parts of the body, lost fingers, loss of eyesight, hearing loss, shrapnel wounds, concussions, and death in the worst of incidents. The vast majority of these injuries occurred in the summer season.

Take sparklers, for example. Sparklers are typically seen as “safe” fireworks that children are given to wave around to see the sparks dance. But sparklers can burn up to 1800 degrees Fahrenheit and cause thousands of burn injuries each year.

Beyond the physical damage they can cause, fireworks cause an average of 18,500 reported fires yearly, resulting in an average of $43 million in direct property damage. Californians must take the risk of wildfires seriously. The summer heat and use of fireworks do not mix well for wildfires and the use of fireworks should be avoided.

Although fireworks are illegal, the reality is that regardless of the law, people are going to be out and about using fireworks, especially around the Fourth of July. Our goal here at Dolan Law Firm is to prevent injuries and reduce the harm in our world. But we must acknowledge that people will violate the law and still engage in dangerous behaviors. So, here are some things to watch out for if you are around fireworks:

Pyrotechnic experts will put on firework shows, it is safer to watch a professional set off fireworks rather than do it yourself.
Never point fireworks at someone else, even if unlit; you should not place any trust in the explosive in your hand.
Fireworks should never be modified or attempted to be modified. Any modification can cause a sudden combustion and is unpredictable. Modifying fireworks has resulted in extreme injuries and death.
Even safe and sane fireworks, where legal, should only be used in an outdoor environment, away from trees, brush, buildings, and other flammable materials. Keep a bucket of water and a hose nearby in case of a fire or accident.
If you are going to dispose of fireworks, soak them in water before placing them in any trash bin. If they are dangerous or illegal fireworks, call the authorities and allow them to dispose of them.

Above all else, be safe out there. Setting off fireworks may be perceived as a fun and joyous activity, but the reality is that fireworks are dangerous, and one mishap can result in life-changing injuries.

In San Francisco, you can call 311 to report the unsafe use of fireworks. If there is an immediate threat of injury or property damage, you can call 911 directly.

Written By Chris Dolan and Nicolette Rae Bencito

This week’s question comes from Frederic from San Francisco, CA who asks: My neighbors and I last had power for three days! We rely on PG&E, but they are still making repairs to the power pole that was damaged in the recent storms. What is a reasonable time for them to fix the problem? Can my neighbors and I seek compensation?

Dear Frederic,

Thank you for your question. It can be incredibly frustrating to be without power for this long, and we hope PG&E can make the necessary repairs soon. PG&E can generally be held responsible for damages that result from their serious misconduct or “gross negligence.” Suppose any person, business, or property is damaged because PG&E does something unreasonable or fails to do something they should have been done. In that case, PG&E must reimburse the injured party for reasonable damages.

However, holding PG&E liable for any damages resulting from forces beyond their control would be difficult. These forces include power outages or voltage fluctuations caused by weather conditions like lightning, floods, heavy storms, extreme heat, and strong winds. While it would be challenging to hold PG&E liable for the initial outages that occurred due to the storm, PG&E is responsible for making repairs as soon as it is safe. Any unreasonable delays to making the necessary repairs to restore power could be considered “gross negligence” that would cause PG&E to face impending legal action from the city or other injured parties.

If you are experiencing an outage due to severe storm conditions, you may be eligible for automatic payments through PG&E’s Safety Net Program. The PG&E Safety Net Program compensates residential customers who lose power for at least 48 due to severe storm conditions. This program makes payments in increments of $25, based on the length of a customer’s outage:

48-72 hours: $25
72-96 hours: $50
96-120 hours: $75
120 hours or more: $100

Payments are generally issued 45 to 60 days following the storm outage.

If you experience an outage for any other reason, you may be eligible for compensation under PG&E’s Service Guarantees. According to PG&E’s Service Guarantee #7:

“PG&E will restore electric service within 24 hours, unless the cause is absolutely beyond our control, or we will automatically credit your account $30 for each 24-hour period you are without service.”

It is important to note that compensation under the Service Guarantees does not apply when planned service interruptions, serious emergencies, or storm conditions cause outages.

Additionally, if you experience any other losses that you believe PG&E may have caused, you can always file a claim for reimbursement. You can file a claim against PG&E in three ways:

through PG&E’s claims service,
through your insurance, or
through court action.

To submit a claim for compensation through PG&E directly, you can process your claim on an online form through PG&E’s Claims. Filing online is typically the fastest way to process a claim through PG&E, but you can also file through email, fax, or U.S. Mail. The following list serves as a guideline for photos and documentation that may be helpful to support your claim:

For Property Damage: Detailed repair estimates and invoices or purchase records.
For Personal Injury: Copy of medical records and receipts.
For Lost Wages: The amount of time you could not work due to personal injury, verification of lost time from your employer, and payroll stubs showing your hourly or daily pay rate.
For Lost Revenues: Tax records and bank statements, payroll records, revenue and expense statements, and sales receipts.
For Miscellaneous Losses: Hotel, restaurant, and car rental receipts.
For Food Spoilage: An itemized list of the costs and type of spoiled perishable food, with receipts or other documentation.

If you choose to file a claim through your own insurance company, your insurer may be able to reimburse you for your losses without an investigation. Your insurer may even pay you the replacement value for damaged items. Each insurance company has its own claims process, so contact your insurer for more information.

If you file a claim through PG&E or your insurance company, you still reserve the option to file a court action at any time during the claims process, even if PG&E or your insurance company deny your initial claim. If the value of your claim does not exceed $10,000, you can file a small claims action that does not require an attorney. Whether or not you pursue this route, we recommend seeking legal advice and working with an experienced personal injury lawyer to resolve the issue.

Written By Chris Dolan and Emile Davis

This week’s article comes from Ayden from San Francisco, who asks: During the recent atmospheric river storms, branches from my neighbor’s tree fell into my yard, causing some damage to my gutters. I don’t know what to do or how to handle this situation. Will I have to pay to repair the gutters, or does my neighbor have to pay to have them fixed for me?

Ayden,

I am sorry to hear that the storms affected you directly. After the severe storms in Northern California, many homeowners questioned who is responsible when a tree, or branches from a tree, falls into their yard. As with many things in the law, the answer to this question depends on several factors.

The first inquiry is to determine the location of the tree. Was it entirely in the neighbor’s yard, primarily in the neighbor’s yard but with branches that overhang into your yard, or was it on the property line between the two properties? Each of these presents different issues that can change the answer to who would have to pay for the damages.

If the tree was on the border of the two properties, California Civil code section 834 makes both homeowners “coterminous owners,” and the tree belongs to them in common, and both may share some responsibility. However, it is more straightforward if the tree trunk is wholly in the neighbor’s yard but has branches that overhang into an adjoining landowner’s property. There is no hard and fast rule about responsibility, but inquiries into which branches fell, or which neighbor has been responsible for upkeep would be necessary.

Generally, the tree owner is liable for damages caused by the overhanging branches. So, suppose tree branches that overhang your property, drop, or fall, causing injury to a vehicle, person, or structure- in your case, the gutters. In that case, your neighbor is likely liable to you for the damages the fallen branch caused. It is important to know that the damages recoverable are only the actual damages sustained. In your case, the cost of repair of the gutters. The mere fact that branches overhang is not actionable.

Where the tree does not have branches that generally overhang your residence, there are several paths to examine to determine if fault will lay with your neighbor and whether their insurance will pay.

Generally, homeowners’ insurance will not have to pay for what is called “acts of god.” That phrase means an accident or other natural event caused without human intervention that could not have been prevented by reasonable foresight and care. Generally, this refers to natural disasters such as hurricanes, earthquakes, floods, and severe storms. In your case, while your neighbor may be on the hook, it is entirely possible that their homeowner’s insurance would not pay because of the atmospheric river and the severity of the storms in Northern California which caused the branch to fall.

On the other hand, if the reason the branch fell was not the storm’s severity but some known problem with the tree, or failure to maintain it appropriately, then the homeowner’s insurance is more likely to cover the damage. If the tree had previously been shedding branches, but no effort was made to trim the ones remaining or ensure their health, your neighbor may be on the hook, and their insurance may cover it.

In any of these situations, contacting your insurance and a lawyer is best to determine who is liable. Another best practice is to document the situation. Take photographs of the damage and what remains of the tree. Get written estimates for the repair of the gutters. Speaking to a knowledgeable attorney and notifying your insurance will help you address the problem quickly and fairly.

Written By Chris Dolan and Carole Okolowicz

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

Dear John,

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

Informal Settlement Negotiations

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

Mediation

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

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

Arbitration

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

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

Trial

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

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

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

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

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

Written By Chris Dolan and Kimberly Levy

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

Dear Shelly,

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

What services will be provided by CARE Court?

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

Who will be eligible for CARE?

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

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

How will CARE Court work?

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

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

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

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

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

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

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

When will CARE be implemented?

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

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

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