The e-magazine of the Solo and Small Firm Section for November 2017.
By Ritzel Starleigh Ngo
I would like to welcome the new 397 members who joined our Section during the State Bar’s free section benefit in September 2017! Please take full advantage of your member benefits through the end of the year. We are looking forward to hearing from new members and continuing section members, on suggestions in how our executive committee can better serve your practice. As the Fall has started, and the leaves change colors, we are reminded that the holidays are slowly approaching as our calendars fill up with events. Our weekdays may be filled with networking functions, MCLEs, and holiday parties. Please look out for upcoming webinars which are sponsored by the Solo and Small Firm Section. The new entity which the Solo and Small Firm section will be a part of effective January 1, 2018, is the California Lawyer’s Association. More news about the California Lawyers Association will be shared with you in the near future. The basic annual licensing fee to practice law in California for 2018 will be $315 for practicing attorneys with active status. Members should expect to receive their fee statements soon. An early Happy Thanksgiving to you, your practice and your families!
By Steven L. Krongold
First Amendment – Commercial Speech
CTIA-The Wireless Assoc. v. City of Berkeley, No. 16-15141 (9th Cir. 10/11/17)
Order denying petition for panel rehearing and petition for rehearing en banc. Case involved a city ordinance requiring cell phone retailers to inform prospective purchasers that carrying a cell phone in certain ways may cause them to exceed FCC guidelines for exposure to radio-frequency radiation. Applying Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), the panel affirmed denial of an injunction against enforcement of the ordinance. The ordinance complied with the First Amendment because the information in the disclosure was reasonably related to a substantial governmental interest and was purely factual. However, in her dissent from denial of rehearing, Judge Wardlaw argued the panel applied the wrong legal standard, and should have taken this case en banc to clarify that Zauderer’s rational basis standard applies only when the government compels speech to prevent consumer deception. The majority gave undue deference (“minimal constitutional scrutiny”) to Berkeley’s radiation disclosure merely because it was not technically false. “The Supreme Court has never been so deferential to government-compelled speech.” Judge Wardlaw believed this decision will sow confusion because a recent case alluded to the Central Hudson standard in holding that San Francisco may not require warnings of the adverse health effects of soft drinks with added sugars. See Am. Beverage Ass’n v. City & Cty. of S.F., Nos. 16-16072 & 16-16073, slip op. at 5–6 (9th Cir. Sept. 19, 2017).
Punitive Damages - Employment Discrimination
Flores v. City of Westminster, No. 14-56832 (9th Cir. 10/11/17)
Three police officers of Latino descent sued the City of Westminster and current/former police chiefs (“Chiefs”) for discrimination and retaliation in violation of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act. The jury heard evidence from which it could reasonably conclude that all four Chiefs acted with malice, and therefore the jury’s verdict was upheld. The Chiefs argued that several of the punitive damages awards exceeded a 4:1 ratio, which “might be close to the line of constitutional impropriety.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). The awards in question had 6:1 and 8:1 ratios. Whether an award of punitive damages exceeds the bounds of due process is determined on a case-by-case basis by examining: (1) the reprehensibility of the conduct being punished; (2) the ratio of the punitive damages award to the compensatory damages award; and (3) the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 580–83 (1996). Court noted that “intentional discrimination on the basis of race or ethnicity is especially reprehensible and ‘a different kind of harm, a serious affront to personal liberty.’ Accordingly, a more substantial punitive damages award may be justified in intentional discrimination cases than in cases involving ‘purely economic’ harms.” Cf. BMW, 517 U.S. at 576. Court also noted “[t]here are no ‘civil penalties’ for the type of conduct for which [Defendants were] held liable in this case.” While Title VII’s damages cap of $300,000 may sometimes serve as a guidepost, “Congress has not seen fit to impose any recovery caps under § 1981 . . . , although it has had ample opportunity to do so since the 1991 amendments to Title VII.” Only a few of the punitive awards were in excess of $300,000. The Court declined to reduce the punitive damage awards, holding that “[o]n balance, the differential between the compensatory and punitive damages is not so large as to be constitutionally excessive on the facts of this case.”
False Advertising—Flushable Wipes
Davidson v. Kimberly-Clark Corp., No. 15-16173 (9th Cir. 10/20/17)
Defendants manufacture and market four types of pre-moistened wipes: Cottonelle Wipes, Scott Wipes, Huggies Wipes, and Kotex Wipes. Each of the four products are marketed and sold as “flushable.” Kimberly-Clark charges a premium for these flushable wipes, as compared to toilet paper or wipes that are not marketed as “flushable.” Each of the four flushable wipes products contains a statement on the package (or on the website associated with the product) stating, in various ways, that the product “breaks up after flushing.” Plaintiff alleged that Kimberly-Clark’s use of the word “flushable” was false because the wipes did not disperse within seconds or minutes like truly flushable products, such as toilet paper. She did not allege damage to her plumbing or pipes. Panel held that under California law, the economic injury of paying a premium for a falsely advertised product was sufficient harm to maintain a cause of action. Because plaintiff only needed to allege an economic injury to state a claim for relief, and because plaintiff alleged that she paid a premium price for the wipes, plaintiff properly alleged that she was injured by Kimberly-Clark’s allegedly false advertising.
Real Estate Fraud – Imputed Knowledge
RSB Vineyards, LLC v. Orsi, No. A143781 (1st Dist. 9/29/17)
Defendants engaged in deceptive marketing of winery with the following advertising statement: “[e]xceptional 19 acre vineyard parcel with operating tasting room, vested 20,000 case winery permit and 12 acres planted to vineyard.” Following the purchase, RSB discovered structural and other problems with the building that were not disclosed by defendants at the time of the sale. RSB’s complaint contained causes of action for breach of contract, intentional misrepresentation, negligent misrepresentation, fraud, and negligence. Trial court granted summary judgment for defendants, ruling that RSB was required to provide evidence creating a triable issue of fact regarding defendants’ actual knowledge of the alleged defects in the property and failed to do so. The court rejected RSB’s claim that knowledge of the defects could be imputed to defendants from the presumed knowledge of their construction professionals, concluding that an agent’s knowledge cannot be imputed when actual knowledge is required. The appellate court affirmed, relying on Rest.3d Agency, § 1.01, comment c. “[O]n the record before us, any information gained by defendants’ construction professionals about the structure of the residence would have been gained while they were acting in the role of designers and builders, not as agents. Accordingly, any knowledge of the construction professionals regarding the defects in the structure was not imputed to defendants.”
Attorneys Fee Award – Favorable Conclusion
John PD Doe v. San Diego-Imperial Council, No. D070414 (4th Dist. 10/17/17)
In a childhood sexual abuse, if the litigation has come to a “favorable conclusion . . . with respect to any defendant” as to whom the plaintiff was required to file a certificate of merit, if the court finds that plaintiff failed to comply with the certificate of merit requirement, the court may award attorneys fees to such defendant. C.C.P. § 340.1, subd. (q). Doe appeals from the trial court's order awarding the defendants attorney fees. Doe contends that section 340.1(q) was designed to permit an award of attorney fees only in situations in which there is some indication that the plaintiff's claim of sexual abuse is without merit. He argued that since the trial court acknowledged that Doe's claim was not frivolous, the defendants were not eligible for an award of attorney fees. The court agreed, relying on a similar provision in the architect/engineer malpractice statute (C.C.P. § 411.35(h)), as interpreted in Korbel v. Chou (1994) 27 Cal.App.4th 1427. Korbel determined that a “favorable conclusion” is the same as a “favorable termination” for malicious prosecution, and that both require a conclusion that is reflective of the merits of the plaintiff’s action. In the subject action, the dismissal occurred when the court sustained without leave to amend a demurrer based on the existence of a procedural defect, i.e., the failure to file the certificates of merit; the dismissal was not as a result of the plaintiff or the court viewing the case as unmeritorious. Since the dismissal was on technical grounds or for procedural reasons, it did not constitute a favorable conclusion.
Respondeat Superior Doctrine—Going and Coming Rule—Special Errand Exception
Morales-Simental v. Genentech, A145865 (1st Dist. 9/22/17, pub. order 10/19/17)
Employee Vincent Ong worked the night-shift (7:00 p.m. to 8:00 a.m.) at Genentech in South San Francisco. In the early morning hours on his night off, Ong drove to Genentech to collect resumes for “some upcoming interviews he had.” Ong caused a vehicle accident that resulted in a fatality. Plaintiffs alleged Genentech was vicariously liable under the doctrine of respondeat superior. However, under the going and coming rule, an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee’s torts. One exception to the going and coming rule is the special errand rule, which provides that an employee is within the scope of his employment while performing an errand either as part of his regular duties or at the specific order or request of his employer. It is not necessary that the employee is directly engaged in his job duties; included also are errands that incidentally or indirectly benefit the employer. It is essential, however, that the errand be either part of the employee’s regular duties or undertaken at the specific request of the employer. Court affirmed summary judgment for Genentech on grounds no triable issue that special errand exception applied. Court considered and rejected three arguments: 1) as a lead technician tasked with hiring, Ong could order himself to perform a special errand in connection with that task; 2) emails were a request to perform a special errand to complete the hiring; and 3) Ong’s trip to Genentech on his night off to review resumes was within his regular duties at Genentech.
Affordable Care Act Individual Coverage Mandate
The Affordable Care Act (ACA) requires that most individuals (and their family members) have health coverage or they must pay an individual “shared responsibility” penalty. The penalty for the 2017 tax year is the greater of (a) 2.5% of gross income or (b) $695 per adult ($347.50 per child) (with a family maximum of $2,085). (IRS Form 8965 explains who is exempt from the penalty.) https://www.irs.gov/affordable-care-act/individuals-and-families/aca-individual-shared-responsibility-provision-calculating-the-payment
Taxpayers report to the IRS whether they owe the penalty on line 61 of the Form 1040. For the 2016 tax year, the IRS announced that it would not reject returns that were filed with line 61 left blank (this is referred to as a “silent return”). Although the IRS would accept incomplete returns, the IRS could still request further information from the taxpayer, and the penalty was not being waived.
The IRS recently announced, however, that the situation is changing for the 2017 tax year. When you file your 2017 Form 1040, line 61 must be completed; “silent returns” will not be accepted. The IRS explained: “For Tax Year 2017, the IRS will not consider a return complete and accurate if the taxpayer does not report full-year coverage, claim a coverage exemption, or report a shared responsibility payment on the tax return. Most taxpayers have qualifying health coverage for all 12 months in the year, and will check the "Full-year coverage" box on their tax return. Taxpayers who do not have full-year coverage will indicate whether they qualify for a coverage exemption or owe a shared responsibility payment.” https://www.irs.gov/affordable-care-act/individuals-and-families/individual-shared-responsibility-provision
Minimum Wage Increases Effective January 1, 2018
California: Effective January 1, 2018, the California minimum wage is increasing. For employers with 25 employees or less, the minimum wage will increase to $10.50 per hour. For employers with 26 or more employees, the minimum wage will increase to $11.00 per hour. For more information: https://www.dir.ca.gov/dlse/faq_minimumwage.htm
Municipalities: An increasing number of municipalities in the state have started enacting ordinances affecting the workplace, including minimum wage laws and sick leave mandates. Some of the changes taking effect January 1, 2018—including a number of minimum wage increases—are:
San Francisco Health Care Security Ordinance (HCSO): Mid-size and large employers with employees in San Francisco are required to contribute a certain amount per hour toward health care. The rates adjust each year. The 2018 health care expenditure rates have been announced—they take effect January 1, 2018, for all employees covered by the HCSO:
In addition, revised HCSO rules were recently published and take effect on October 29, 2017.
San Francisco Paid Parental Leave Ordinance (PPLO): Compliance will extend to employers with 20 or more employees beginning on January 1, 2018.
San Francisco’s Lactation in the Workplace Ordinance: This ordinance goes into effect January 1, 2018.
Santa Monica’s Minimum Wage Ordinance: Santa Monica’s Minimum Wage Ordinance also includes a mandatory sick leave provision, and it is changing effective January 1, 2018. As of January 1, 2018, workers can earn up to 40 hours (small businesses) and 72 hours (larger business) of sick leave.
Berkeley’s Minimum Wage Ordinance: On October 1, 2017, the minimum wage increases to $13.75/hour.
El Cerrito’s Minimum Wage Standards Ordinance: As of January 1, 2018, the minimum wage increases to $13.60/hour.
Mountain View’s Minimum Wage Ordinance: As of January 1, 2018, the minimum wage increases to $15.00/hour.
Palo Alto’s Minimum Wage Ordinance: As of January 1, 2018, the minimum wage increases to $13.50/hour.
Richmond’s Minimum Wage Ordinance: As of January 1, 2018, the minimum wage increases to $13.00/hour.
San Jose’s Minimum Wage Ordinance: As of January 1, 2018, the minimum wage increases to $13.50/hour.
Santa Clara’s Minimum Wage Ordinance: As of January 1, 2018, the minimum wage increases to $13.00/hour.
Sunnyvale’s Minimum Wage Ordinance: As of January 1, 2018, the minimum wage increases to $15.00/hour.
California Supreme Court
California Supreme Court Issues Decision On Bar Exam Cut Score
Will the cut score on California's bar exam be lowered?
The California Supreme Court has finally spoken — and much to the chagrin of those who took the exam this past July, there is no good news to be had.
The score needed to pass the California bar exam will remain 144. The justices of the state Supreme Court were unpersuaded by pleas to lower the passing score, citing the fact that California’s tailspinning pass rates are consistent with the national nine percent average decline in overall pass rates observed from 2007 to 2016.
For full article: https://abovethelaw.com/2017/10/california-supreme-court-issues-decision-on-bar-exam-cut-score/
Superior Courts: Contact Information
San Luis Obispo
We’ve got a new name!
The name of our new association has been approved by the Chief Justice - the education arm of the Bar is now the “California Lawyers Association”.
Clio released its 2017 Legal Trends Report. They use three key performance indicators — utilization, realization, and collection rates — to measure how much of a lawyer’s workday contributes to actual earnings. For full article: https://abovethelaw.com/2017/10/less-than-30-of-lawyers-workdays-are-billable-and-other-findings-from-clios-legal-trends-report/
By Robert M. Klein
a law practice devoted to helping personal injury victims.
By now, most of you have heard, read, or seen that Apple has launched a new operating system for iPhones and iPads called iOS 11. As of today, the original, plus two updates, have been launched. The current version is 11.0.3.
In the past, many people I know have expressed reluctance to updating their phones/iPads when a new operating system is launched. The fear is an update will disable their device. As attorneys, I think we have an obligation to our clients to install new updates when available. Most updates provide enhanced security features, though this is not often mentioned in articles I read. However, security is a motivator for Apple ensuring our privacy and protection. However, if you use an older device, make sure any update will be compatible.
IOS 11 contains many new features. Some features enhance the user experience, some features make our device more useful for work, and some features are simply fun to use. In doing research for this article, I watched several videos and read many articles. Some features which I read about, I could not implement. One feature, which I think would be a terrific feature for lawyers, is saving text messages to an iCloud account. I am not sure why I was not able to activate this, but I look forward to the opportunity of making use of this feature. (It appears I will be taking a trip to an Apple store to see if my Apple 6s can handle this feature or maybe I will find out this feature has not been released).
Here are some of the new features I find useful, in no particular order. Sharing a Wi-Fi password: before the update, to give somebody access to your Wi-Fi network, you would have to know the Wi-Fi password, provide it to the user, and then watch them enter it into their phone. With the new feature, sharing a password is four simple steps. The first device (presumably yours) is logged into the Wi-Fi. The second device is then unlocked. Move the two devices close and, on the first device, you will see an option to share the password with the second device. By saying, yes, this will allow your guest, client or whomever the option of joining your Wi-Fi network.
There are new features in Siri. There is a setting where Siri can be activated simply by lifting the phone up to your ear. This feature is activated by going to Siri in Settings and toggling “Raise to Speak.” Siri now has the ability to correct errors. Once you are done saying a sentence, you can say “change term.” Siri can perform math functions, it can calculate tips, and it can assist in helping you make a decision by flipping a coin or rolling a dice. You can also use it to call Uber. While you can use it to play a song on Apple Music, you cannot use it to play a song on other music services such as Spotify.
The control page has been renovated. When you swipe up from the bottom, you now see the entire control section on one page. You can add or remove certain features. For example, you can add Apple Pay or turn your iPhone or iPad into a remote control for Apple TV. This is accomplished by going to Control Center and then customizing controls. Add or remove features from there.
Apple has added a feature to eliminate texting and driving. Your phone now detects if you are moving and can be set to automatically enable “Do Not Disturb While Driving.” Apple has added a file cabinet icon. This is called “File.” This folder can be linked to many cloud services including Dropbox, Box, OneDrive, Google Drive and iCloud Drive. Documents can be set up like a file folder, including subfolders. They can be color-coded. This is similar to setting up a filing system through an app like GoodReader, and which makes the iPad feel like it is a computer.
A fun feature allows you to take a screenshot and save it as a PDF and mark on it. For example, you can take a screenshot of a location, circle on the screenshot, and send it to somebody showing where you are (how about being creative and using this feature in a deposition.) You can also go to Safari and save a website as a PDF. (I tried to do this in Google’s browser, but this feature is not activated.) Once you have the PDF, you can also mark it up whether or not you have an Apple Pencil. This is a terrific feature if you are doing any research or reading when away from your office.
The last feature, which is new, is the ability to reach emergency access. This can be done by pressing the power key rapidly five times in a row. Emergency SOS will pop up on the home screen whether your phone is locked or in any other app.
There is a lot to the new iOS operating system. The new features enhance the use of an iPhone/iPad and greatly enhance the use of an iPad for the practice of law.
When you pay your dues, don’t forget to renew your membership in the Solo and Small Firm Section. The 6 FREE (and hard to get) MCLE SPECIALTY CREDITS alone pay for the cost of your membership!
If you are in compliance Group 3 (N-Z), don’t find yourself on the uncomfortable end of an audit. Even if you have a year or two to fulfill your obligation, why wait? Join the Section today, and you have a year to take advantage of the free MCLE.
The general rules for compliance follow:
Here are some tips to make sure you are MCLE compliant. First, log in to your State Bar Profile and navigate to the CLE Summary and Tracking Tool. This tool automatically keeps track of all MCLE credits you’ve earned, which were reported to the State Bar. This can be a perk of attending programs sponsored by the Solo and Small Firm Section. The CLE Summary automatically tracks your attendance so you can review the MCLE that you’ve completed and can easily see where you may be deficient.
Second, if you are a member of the Solo and Small Firm Section, you are entitled to 6 free self-study credits as part of your membership. These six credits alone make your membership worthwhile. The best part is that the 6 free hours will completely cover the required special topics of ethics, competence, and elimination of bias. You can access those free 6 hours by signing into your State Bar Profile by clicking here.
Next, check out the online catalog of programs offered through Solo’s Section by clicking here. You can see some of the best speakers and hottest topics recorded from live programs and webinars throughout the state. For those who need “participatory credit,” most of these programs count.
If you haven’t reviewed your MCLE compliance in a while, you should review it soon. If you need additional credits to become compliant, use your free member benefit and complete the 6 free online credits detailed above, check out the online catalog, and consider attending a live program or webinar in the coming year. Taking these simple steps will improve your practice and ensure your compliance with the MCLE requirements
“We all know that light travels faster than sound. That's why certain people appear bright until you hear them speak.” Albert Einstein
“Twenty years from now you will be more disappointed by the things you didn’t do than the ones you did.” Mark Twain
Why wait for January to fulfill your MCLE requirements! The Solo and Small Firm Section is sponsoring a series of popular webinars this fall—with each program you will earn 1 hour of participatory MCLE credit.
Thursday, November 2, 2017, 12 noon - 1 p.m.
1 hour participatory MCLE credit.
Many newer attorneys don’t know how to get started developing cross-examination questions for trial, and then might not be confident about where to take the examination. This seminar offers practical advice and guidance.
Thursday, November 9, 2017, 12 noon - 1 p.m.
1 hour participatory MCLE credit.
Learn effective skills for presenting your client’s case at each step in the litigation process, from law and motion to trial. Learn what judges, mediators, and juries want and need to hear from you, whether you are arguing points of law or presenting the story of the case.
Speakers: Patricia McCabe and Steve Mehta
Looking for more MCLE course options? We have options!
If you know someone thinking of attending law school and is currently a college student in California, have them consider applying for the UCLA
Law Fellows program which is a program that has a series of Saturday academies designed to demystify the law school process. Applicants across the state of California are encouraged to apply. Please review the informative material enclosed." Click Here.
The next meeting of the Executive Committee is a teleconference on Thursday, November 9, 2017, at 4 p.m.
Questions regarding any agenda item should be directed to the Section Coordinator, John Buelter, at 415-538-2341 or 180 Howard Street, San Francisco, CA 94105-1639. The order of business is approximate and subject to change.