Beware Of Defective Eye Drops

Written By Chris Dolan and Nancy Villatoro

This week’s question comes from Calvin from Hayward, CA, who asks: News reports have talked about defective eye drops, and they mentioned that the FDA had recalled many eye drop brands. Can you discuss why this is happening and what people can do if they are injured by them? 

The Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and state and local health departments are investigating a multistate outbreak of an extensively drug-resistant strain of Pseudomonas aeruginosa. According to the CDC, this bacterial outbreak has been associated with multiple eye infections nationwide. So far, this bacterial outbreak has affected 68 patients in 16 states, including patients in California. Thus far, the most severe cases include three deaths, eight people experiencing vision loss, and four undergoing enucleation, surgical eyeball removal.

Most patients affected by this bacterium have reported using artificial tears, more commonly known as eye drops. The FDA has issued a recall on three eye drop brands. The FDA and the CDC recommend that people stop using the products they have recalled. Some side effects to be vigilant for include:

  • Yellow, green, or clear discharge from the eye
  • Eye pain or discomfort
  • Redness of the eye or eyelid
  • Feeling of something in your eye (foreign body sensation
  • Increased sensitivity to light
  • Blurry vision

Use the following websites to determine if your product has been recalled: FDA.gov, CPSC.gov, Recalls.gov, NHTSA.gov, FSIS.USDA.gov, and Foodsafety.gov. If you believe you have purchased and used an unsafe or mislabeled product, you may report the product to FoodSafety.gov. 

If you or a loved one have sustained an injury due to eye drops, you may be entitled to compensation under a claim of products liability. However, thoroughly understanding the legal components and requirements involving a defective product and presenting a solid case is crucial.

To build a solid products liability claim, you must ultimately do the following:

  1. Show the product was defective. 
  2. Prove liability.
  3. Prove that the defective or dangerous product resulted in your personal injury. 

Types of Product Defects 

Products liability claims generally fall into three categories:

  • Design Defect. A design defect claim argues that a product’s design is inherently dangerous or defective. This claim does not suggest that an error occurred during the manufacturing process of a product but that an entire line of products is dangerous or bound to be defective, as all products in a certain line utilize the same design. Some design defect examples include a vehicle tire that blows out at certain speeds or a clothes dryer that becomes too hot and starts a fire. In California, two tests are used to determine liability: the risk/benefit test, and the consumer expectations test.
  • Manufacturing Defect. A manufacturing defect claim arises when a product becomes flawed due to an error in manufacturing, which is then unlike the standard, other items of the product line, and subsequently causes injury. Therefore, although the product line’s design is safe, the manufacturing of a particular product varied from the specifications, resulting in a malfunction. An example is when a seatbelt is accidentally left out of a vehicle during manufacturing or a product becomes contaminated while it is being sealed.
  • Lack of Adequate Warnings or Instructions.  This claim results from a product failing to provide enough instructions regarding proper usage or warnings. An example is when a medication lacks warnings about specific drug interactions or lists possible side effects.

Proving Liability 

To prove liability in a defective product claim, you need to prove that the product was being used as intended, the product was defective, you were injured or suffered harm, and that harm was caused due to the defect. For this, evidence is key.

Evidence includes the defective product, photos and videos documenting the injuries, the defect, or even the incident, medical bills, accident reports, witness statements, insurance documents, emails, marketing materials, or memos showing the manufacturer knew of the defect.

Possible Defenses

In California, a manufacturer may have defenses to defend against fault. First, the product was misused or modified in a way that was not reasonably foreseeable, and that misuse or modification was the sole cause of the injuries. Second, the user is a “sophisticated user,” meaning that because of experience, knowledge, or skill, the user knew or should have known that the product was dangerous.

Damages 

The compensation you may receive in a product liability case varies depending on the misconduct’s type, severity, and ramifications. Specifically, in claims involving products, generally, the damages have to be primarily due to the costs of the litigation. Furthermore, it is important that if you are the victim of a defective, unsafe, or dangerous product, you keep the product to prove it was the one that caused your loss.

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E-Bike Insurance Chris Dolan and Aimee Kirby

Written By Chris Dolan and Aimee Kirby

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

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

Dear Ellen, 

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

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

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

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

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

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

Written By Chris Dolan and Nicoletter Rae Bencito

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

Dear Aidan,

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

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

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

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

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

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Hospital Lien Act Gives Health Care Providers Legal Recourse

Written By Chris Dolan and Nancy Avila Villatoro

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

Dear Anonymous,

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

It depends. 

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

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

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

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

How does this affect your personal injury recovery?

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

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

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

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

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

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Investigators Looking if Warning Signs Were Missed in VTA Yard Shooting Case

 

 

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

 

 

 

 

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What is Ascertainment? Here is what you need to know

Written By: Allison Stone and Christopher B. Dolan

What is ascertainment?

President-elect Joe Biden’s transition to power relied on a widely unknown acknowledgement called, “ascertainment.” Under the Presidential Transition Act of 1963 (PTA), the transition to the next presidential administration formally begins once the Administrator of the General Services Administration (GSA) ascertains the, “apparent successful candidate,” for president. But what does this mean?

Generally the GSA is the federal agency that keeps our government running, and the GSA Administrator determines when the transition to a new administration begins.  To do so, pursuant to the PTA, the Administrator ascertains the apparent successful candidate following a presidential election.

What has proved to be problematic is that there is no definition in the PTA as to how an, “apparent successful candidate,” is ascertained by the Administrator. The PTA has been amended over the years, yet the ascertainment requirement has remained vague. Thus, this critical decision is at the GSA’s discretion and based on the Administrator’s reasonable judgment.

This begs the questions: What is reasonable? What should be considered? Historically, the factors that have been relied upon include news media election calls, vote counts reported by states, and the losing candidate’s concession. For the transition to begin, the Administrator signs a letter of ascertainment, which is the current administration’s acknowledgment that a candidate won the election. Only the Administrator can ascertain the winner, thus he controls when the formal transition begins.

Currently, the Administrator is Emily Murphy. She was nominated by President Trump and appointed in 2017. It was therefore, her duty to ascertain who won the 2020 election, and she held the power to decide when to initiate a transition of power.

Why does ascertainment matter?

A letter of ascertainment is the necessary step to make considerable federal funding, resources and services provided by the PTA available to the President-elect and his team, and it allows them into the federal agencies they will take over. This gives them time to organize before Inauguration Day.

Ascertainment is a routine step based on the unofficial election results and the Administrator’s decision was made once a few credible news outlets declared a winner or after a concession. Ascertainment has often been made within a few hours to a couple of days. A prompt transition is necessary so the President-elect can hit the ground running.

Although Joe Biden was widely accepted as the apparent winner on November 7, 2020, and although news outlets and states had called the election for Joe Biden, Emily Murphy did not authorize the transition for 16 days, until November 23rd.  As a result, there was a delay in the dispersal of crucial resources and materials provided by the PTA to ensure a smooth transition. Until November 23rd Joe Biden’s team could not access $9.9 million to create a new administration or to expedite background checks, and they could not go into federal agencies, or obtain intelligence briefings.

What are the consequences of delaying ascertainment? 

This delayed decision has put lives at risk, particularly during this COVID-19 pandemic. Transition experts opine that the 16-day delay will leave the new administration’s coronavirus response team less prepared, may hinder coordination on future economic relief, and may threaten our national security. There was a delay with ascertainment following the contested 2000 election and experts cite 9/11 as a tragic result of the delay in getting the new administration’s national security team situated. Similarly, here, the 16-day delay puts the safety and well-being of Americans in further danger and this time cannot be regained.   

How do we prevent a delay in ascertainment in the future?

Emily Murphy did not authorize the transition process for 16 days, which was well-after all major media outlets and states reported an apparent winner. Notably, in her November 23rd letter, Emily Murphy does not refer to Joe Biden as the, “President-elect,” and never stated that she ascertained that Joe Biden is the “apparent successful candidate.” This is the basic language in the PTA. Instead, Emily Murphy stated, “I have determined that you may access the post-election resources and services described in [the PTA].” Her letter also states, “Please know that I came to this decision independently […] I was never directly or indirectly pressured by any Executive Branch official […] with regard to the substance or timing of my decision.”

 

Also, on November 23rd President Trump tweeted that, “… I am recommending that Emily and her team do what needs to be done with regard to initial protocols…” Although ascertainment is supposed to be an apolitical, independent decision by the GSA, the President’s tweet in conjunction with Emily Murphy’s letter has raised red flags and suggests that the delay was politically driven and influenced by the President.

 

 

To prevent harmful delays in the future, amendments to the PTA should be considered. Some changes should include a definition or clear criteria for determining, “the apparent successful candidate.” This will prevent Americans from relying on the unfettered discretion of one person in such a critical process in our democracy. Further, imposing penalties when an Administrator abuses the duty of ascertainment should also be considered.  Finally, change must be made to ensure that ascertainment is, in fact, apolitical and independent. The 2020 election has taught us that changes to the PTA would be highly beneficial to ensure a smooth and prompt transition of power for the safety of our country.    

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Justice Empowerment Scholarship 2020

Justice Empowerment Scholarship 2020

We’re proud to announce that our annual Justice Empowerment Scholarship is now open to receive submissions. Last year we awarded the scholarship to Adrian Hurndon, an undergraduate student at Northeast Community College. Adrian Hurndon, an upbeat percussionist, when asked what inspired him to submit a video for the 2019 Justice Empowerment Scholarship said, “It is the perfect opportunity to let people know that awareness is only part of the solution and it’s time to take action and stand up for ourselves.”

Justice Empowerment Scholarship Award Requirements

Award:  One $2,500 scholarship paid to the winning student.

Deadline:  This is a recurring scholarship that will be offered every year. The deadline for the 2020 Justice Empowerment Scholarship is July 31, 2020.

Criteria:  Submissions are evaluated primarily on the persuasiveness of arguments contained in the video. Creativity, images, and innovation incorporated into the video are also taken into account. The scholarship winner is determined solely by the Dolan Law Firm.

Eligibility:  Students attending an accredited U.S. college (including community college) or university are eligible for the scholarship. High school seniors who will be attending an accredited U.S. college or university this Fall are also eligible to apply. No employees of the Dolan Law Firm, or their spouses and family members, nor any employees, spouses and family members of any vendors of the Dolan Law Firm, are eligible.

Submission Requirements: 

  • Applicants must create a 4 to 6 minute video on the topic of justice.
  • In the video, introduce yourself and address the following questions:

What does justice mean to you?

What you think needs to be changed in our society to make it more just?

How you can help bring about this change?

  • Videos must be uploaded to YouTube with the title: “2020 Justice Empowerment Scholarship Submission By _______”  Insert your name in the blank space.
  • In the description of the video on YouTube, briefly summarize your video and include in the description the following statement: The Justice Empowerment Scholarship is provided by the Dolan Law Firm which can be found online at https://dolanlawfirm.com

 

 

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Who is liable for falling trees?

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. The recovery of damages is generally proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a a major caveat: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect. Additionally, even when no local ordinance exists, it would be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In this case, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance.

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Most gift cards come without expiration dates

This question comes from Kim M. in Pacific Heights, who asks:

Q: “I want to get my daughter a gift card for the holiday, but I have heard that they have fees and expiration dates that can result in the card losing most or all of its value. What is the law regarding these gift cards?”

A: Gift cards can be good for the retailer and the receiver. The receiver can take advantage of the Cyber Monday and Black Friday sales to get more for his or her money, and the retailers get cash upfront without reducing inventory. These cards used to be more of a benefit for retailers, but the California Legislature, in combination with certain consumer-rights groups, has enacted legislation designed to protect consumers.

California Civil Code Section 1749.5 contains the bulk of the law regarding gift certificates and gift cards. Section 1749.5 makes it illegal to sell a gift certificate that contains an expiration date. Likewise, it provides a prohibition against service fees, including any fee for dormancy (unless it has been dormant for more than 24 months, the fee is clearly stated in 10-point type on the card, the fee is no more than $1 per month and the remaining value of the card is $5 or less each time the fee is assessed).

Any gift certificate sold after Jan. 1, 1997, is redeemable in cash for its cash value or subject to replacement with a new gift certificate at no cost to the purchaser or holder, and any gift certificate with a cash value of $10 or less is redeemable in cash for its cash value.

There are certain exceptions to the no-expiration rule. Namely, gift certificates issued pursuant to an awards, loyalty or promotional program without any money or other thing being given in exchange for value, gift certificates donated or sold below face value at a volume discount to employers or nonprofits for fundraising purposes and certificates for perishable food products. Certificates of this type must have the expiration date in capital letters printed on the front.

One issue with gift cards that are not redeemed is the company may go bankrupt. This has happened in the past, leaving countless individuals with gift cards with no value beyond that of the plastic in their hands. California law states that the value of a gift card is held in trust by the issuer such that when and if the issuer goes bankrupt, the gift card value is not considered part of the bankrupt entity’s estate but is considered the holder’s property.

Civil Code Section 1749.6 states that an issuer of a gift certificate who is bankrupt shall continue to honor a gift certificate issued prior to the date of the bankruptcy filing on the grounds that the value of the gift certificate constitutes trust property of the beneficiary (holder). Under certain limited circumstances, gift certificates with an expiration date can be rendered valueless, but the money therefore does not go to the retailer it escheats — i.e. it reverts back to the state’s general fund if it is uncollected property.

Before purchasing gift cards or gift certificates, ask the vendor about their redemption policy. For a gift card that can be used by many non-affiliated vendors, ask for expiration dates and any relevant fees. In addition, ask about where the unused portion of the value can be redeemed and how that amount can be redeemed. This is also important for “single seller” cards, many of which can be purchased at an unaffiliated location.

So, Kim, this is probably more than you were asking for, but there it is. Unless the certificate meets these exceptions above, it can not be subject to an expiration date and your daughter should be able to benefit from your generosity.

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What responsibility do schools carry for cyberbullying?

This week’s question comes from Michelle P., who writes:

Q: “My daughter is a sophomore at a high school within the San Francisco Unified School District. Like many kids her age, she has a smartphone, which helps the family stay in touch but also allows her to interact regularly online with other kids from her school, some of whom can be very nasty to her, even threatening. She doesn’t feel like she has any choice but to engage with them but this cyberbullying has made her so anxious she can’t focus on her schoolwork. Does her school or SFUSD have any responsibility to intervene when their students are harming each other online?”

A: Michelle, you are right to be concerned and in your intuition that the school should be involved. Cyberbullying has become increasingly common over the past decades and can have tragic, even deadly, consequences.

The State of California recognizes all bullying as a form of violence that involves a real or perceived imbalance of power between individuals or groups of children and results in unprovoked, intentional, and usually repeated physical, verbal, or emotional abuse. Bullying may also manifest as sexual harassment, hate violence, and other severe or pervasive behaviors that create an intimidating or hostile educational environment. California has also specifically recognized the increasing prevalence of cyberbullying, defined as repeated or recurring harm willfully inflicted through electronic media, which can be just as detrimental to students’ wellbeing as face-to-face conflict.

Amendments to California’s existing Safe Place to Learn Act and Interagency School Safety Demonstration Act became effective on Jan. 1, 2019 and required all local educational agencies to adopt procedures for preventing acts of bullying, including cyberbullying, by the end of this calendar year. In May, SFUSD complied with this requirement by adopting Board Policy 5131.2: Bullying and Administrative Policy 5131.2: Bullying. SFUSD policy specifically prohibits transmission of communications or posting of harassing messages, direct threats, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies, as well as assuming another person’s identity through an electronic account in order to damage that person’s reputation. SFUSD authorizes school administrators to intervene even if the cyberbullying is conducted off campus or outside of school hours in any case where the behavior is impacting students’ learning environment.

Your daughter’s school should have notified all families of the school’s reporting and investigation process. Any student, parent, guardian, or other individual who learns of school-related discrimination, harassment, intimidation, or bullying should immediately contact the school’s principal, or any other staff member. Any school employee who learns of cyberbullying is also required to report the activity to the school principal, who must in turn notify the district compliance officer and inform the target student of their right to file a formal written complaint with the district Office of Equity. Cyberbullying victims are encouraged to save and print relevant electronic or digital messages for aid in investigation of the matter. Complainants names will be held confidential to the extent possible and district policy prohibits any form of retaliation against any individual who files such a complaint.

The school principal is first required to determine whether interim measures are necessary to address the effects of the reported bullying pending investigation and final resolution. After a thorough investigation, including interviews of the accused student and any other witnesses, the principal will determine whether the matter may be resolved through “restorative practices,” a process similar to mediation. If further action is needed, a school may discipline the offending student and, if appropriate, request any applicable social media sites to remove offensive online content and/or suspend the offender’s user privileges.

Pupils who engage in discrimination, harassment, intimidation, bullying, or retaliation in violation of law, Board Policy, or administrative regulation may be referred for counseling, behavioral intervention and education, suspension, and/or expulsion. Any employee who permits or engages in prohibited discrimination, harassment, intimidation, bullying, or retaliation shall also be subject to disciplinary action, up to and including dismissal.

If you are unhappy with SFUSD’s resolution of the matter, state law allows 15 days to appeal the district’s action to the State Superintendent of Public Instruction. After sixty days following the filing of an appeal, you may seek civil remedies through the courts, seeking damages and injunctive relief (orders from the court to stop or change certain behaviors/policies).

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