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Tuesday
Jun282016

Rocket's Red Glare: Burns & Other Injuries From Fireworks

Injury Attorney Los AngelesDefective Product Attorney

 

by David B. Bobrosky

(818) 907-3254

 

According to the Consumer Products Safety Commission (CPSC), about 230 people are rushed to an emergency room daily between June 20th and July 20th each year, because of serious fireworks injuries. More than half of these ER patients suffer serious burns, mostly to hands, eyes and faces. Some suffer fatal injuries.

Many accidents caused by fireworks are the consumer’s fault, primarily due to inattention, inebriation, or the taking of unnecessary risks.

Just remember what happened to New York Giants’ defensive end Jason Pierre-Paul in 2015. His inattention to which firework he was actually lighting, and an attempt to light it seven times (the wind kept blowing out the flame) nearly cost him his hand, as well as his pro-football career. He spent nearly three weeks in the hospital recovering from burns, an amputated finger and other injuries.

Many times though, fireworks manufacturers are to blame because of defects in design or a lack of sufficient warning or instruction on the packaging.

Fireworks Liability & Negligence

Sometimes, a number of individuals or entities may be found negligent. The responsible party may be a homeowner hosting a party, a fireworks manufacturer, pyrotechnic company hired to set off the fireworks, or the city that hires these companies. Even the importer may be held liable, as the company buying and selling fireworks in the U.S. has a responsibility to provide safe fireworks.

For example, a serious fireworks accident injured dozens of people in Simi Valley, California in 2013. Several injury lawsuits were filed against the Rotary Club of Simi Valley which hosted the July 4th festivities, the Rancho Simi Recreation and Park District, the City of Simi Valley, Ventura County and the pyrotechnics company, Bay Fireworks of New York.

The family of a pyrotechnic professional killed in 2014 filed a suit earlier this year against the pyrotechnic employers as well as six Chinese companies that designed, manufactured, packaged and sold a truckload of fireworks that prematurely exploded and killed four people in Texas.

California Health and Safety Code regulates the manufacture, transport, storage, sale and use of fireworks through California’s State Fire Marshall. The County of Los Angeles has its own set of regulations with classifications, which may be more stringent than state code. Click state and county fireworks code for more information, including definitions for which pyrotechnics are considered dangerous, exempt or “safe and sane”.

Serious Burn and Explosion Injuries

The problem with serious burns and other injuries sustained around explosive devices like fireworks is the long-term recovery needed. They usually require multiple skin grafts and come with a high risk of infection. Long-term physical therapy may be needed to recover the use of limbs or hands.

Fireworks accidents in particular may require intensive psychological treatment as well, as victims may be severely traumatized when attending a public event or celebrating a holiday that so seriously goes wrong. Heavy scarring or disfiguring injuries that can’t be fixed through plastic surgery may also take a psychological toll.

Treatment, whether physical or psychological, takes time and financial resources – impacting work, family and lifestyles.

Fireworks Safety

To reduce the risk of being burned or suffering other injuries from explosions, follow these safety tips: 

  1. Purchase fireworks approved for consumer use only. If wrapped in brown paper, they’re probably meant for professionals who have the proper safety gear and training, according to the CPSC.

  2. Obey local ordinances – many cities in California will ban all pyrotechnics displays, especially in very dry seasons. (See LA County fireworks info.)

  3. Keep water on hand – buckets of it are good, garden hoses are better.

  4. Don’t let children play with fireworks.

  5. Supervise children with sparklers – festive as they may be, sparklers can burn at 2,000 degrees Fahrenheit – enough to cause serious burns when mishandled.

  6. Follow the lighting instructions carefully.

  7. Don’t modify the fireworks or experiment with homemade devices.

  8. Don’t light fireworks near homes, dry brush, or other fireworks.

  9. Light only one firework at a time.

  10. Don’t hover over the explosives. When lighting fireworks, try to do so at arm’s length.

  11. Don’t light fireworks inside metal or glass containers.

  12. Once lit, step away. The farther away you can get, the better.

  13. Don’t throw fireworks at another person. Even if you’re expecting a small explosion merely meant to scare someone, you never can predict how badly things may go awry.

  14. Just like a gas barbecue grill, don’t try to relight fireworks that didn’t light properly the first time – soak the duds in water and then throw them away. (In the case of a gas grill, turn off the gas, open the lid to allow accumulated gas to disperse for at least five minutes before attempting to relight.) 

Whether attending a city sponsored show, or just lighting up sparklers in the back yard, always be aware of the safety risks involved with fireworks, as well as who can be held liable for negligence.

The Kardashians found this out the hard way last year, when they set off fireworks and local tempers in Marina del Rey. According to TMZ, a disgruntled neighbor attempted to sue Khloe Kardashian for a permitted, eight minute pyrotechnic display at midnight that allegedly traumatized both him and his dog. When push came to shove though, the plaintiff failed to appear in court.

The lesson goes without saying: a little common sense and a lot of precaution can keep you and your loved ones safe, and out of court as either plaintiffs or defendants.

David B. Bobrosky is a Defective Product Attorney in our Personal Injury Practice Group. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Jun232016

Small Claims: When Litigating Without a Lawyer Makes Sense

Corporate Litigation Lawyer Los AngelesBusiness & Real Estate Litigation Attorney

 

 

Paul C. Bauducco
818.907.3245

 

 

 

 

Many people and businesses have disputes or suffer damages in the thousands of dollars, which they need to resolve or seek compensation for. The dispute or claim might involve the sale of used furniture or other personal property, where the buyer doesn’t pay what is owed. , or damage to a car in a parking lot by someone not paying attention with their shopping cart.

With court costs and attorney’s fees, litigating these “small claims” can be very expensive, many times prohibitively so. Law firms often turn away smaller claims, not because the claim isn’t valid, but because the cost of litigating it for a client may well cost more than the damages a client can recover.

So what options are there for people and entities when the amount in dispute or damages are “too small” to hire a lawyer, but “too large” to walk away from?

One option is to file a small claims action pursuant to the “Small Claims Act”, Code of Civil Procedure §§ 116.110 to 116.950. Generally, the Small Claims Act allows an entity to file a claim with a demand of up to $5,000, and an individual to file a claim with a demand of up to $10,000.

Filing fees are low: $30 for claims up to $1,500, $50 for claims between $1,500 and $5,000, and $75 for claims between $5,000 and $10,000. In the higher courts filing fees alone are many hundreds of dollars. The Court will serve your claim by mail on each named defendant for $15 per service.

In addition to the limitations on the amount of the claim a person or entity may pursue in small claims actions, you have to represent yourself. No lawyers are allowed for either party in the case. Also, you cannot sue more than twice in a calendar year for over $2,500.

Small claims cases are presented to a judge. There is no jury. You will be responsible for preparing and presenting your case, including documents and witness testimony, but you will be saving money by not having to pay an attorney. The Superior Court and California Department of Consumer Affairs each have detailed websites with instructions on how to file and try your small claims action. Also, many courts have information and staff onsite who can give you guidance on filing and preparing your case.

Small Claims Save Time

Small claims are normally tried within weeks or a few months of filing, compared to the higher courts where a trial may be set years after the case is filed. Small claims trials can be set during the week and, where the court is larger, on at least one night or Saturday a month. The court you file your small claims in must be located in the county where an individual defendant lives or an entity defendant has its business or office.

If a plaintiff loses a small claims action, there is no appeal. However, if the defendant loses, he/she/it has the right to appeal the judgment. The appeal is heard in the Superior Court “de novo”, meaning the whole matter is tried over again as if the prior hearing never happened. Also, on appeal, the parties have the right to be represented by a lawyer.

Summary of Benefits of Small Claims Actions

-Low filing fees

-Service of the complaint by the court

-No attorney’s fees

-Early trial date

Limitations of Small Claims Actions

-$5,000 claim limit for entities

-$10,000 claim limit for individuals

-Limit of two claims of $2,500 or more per year

-A “de novo” appeal can be filed by a losing “defendant”

Small claims actions give individuals and businesses a practical alternative to the choices of expensive litigation or walking away from a claim.

 

Paul C. Bauducco is the Chair of our Business Litigation Practice Group

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Tuesday
Jun072016

Los Angeles Employers: Administer This New Policy, Stat!

Lawyer for EmployersEmployment Compliance

by Tal Burnovski Yeyni

818-907-3224

 

In April, we wrote that Los Angeles City Council voted to enact a sick leave ordinance in Los Angeles, which will provide six days of paid sick leave to employees in the city. Last week, the City Council adopted the ordinance and made L.A.’s sick leave policy official

Operative Date and Coverage 

Pursuant to the new Ordinance, every employee who, on or after July 1, 2016, works in the City for the same employer for 30 days or more within a year of employment, is entitled to paid sick leave. Accrual of paid sick leave under the Ordinance must start on July 1, 2016 or on the first date of employment, whichever is later. 

An “employee is defined as any individual who performs at least two (2) hours of work in a particular week within the City (and qualifies as an employee under California Law). 

An “employer is defined as any person, including a corporate officer or executive who directly or indirectly, or through an agent or another person including through the services of a temporary service or staffing agency, employs or exercises control over the wages, hours or working conditions or any employee. 

Thus, per the new Sick Leave Ordinance, the duty to comply is determined by the location of the employee. Further, the Ordinance may place individual liability on officers of the company and creates joint liability for client-employers. In that respect, the ordinance mirrors Labor Code 2810.3.   

Use of Paid Sick Leave

While the California Paid Sick Leave Law requires employers to provide, at minimum, three days or 24 hours (the greater) of paid sick leave per year, Los Angeles Sick Leave Ordinance sets a minimum of 48 hours of paid sick leave per year of employment. Employers may either “front-load” the days or allow employees to accrue one (1) hour of paid sick leave per every 30 hours worked. 

If accrued, employers may place a cap at 72 hours (or higher). Further, the LA Ordinance clarifies that if an employer has a paid leave or paid time off policy that is equal to or no less than 48 hours, no additional time is required. 

The Ordinance is not only more generous in the amount of paid sick leave, but it also defines the permitted use more broadly. Thus, under the ordinance employees may use paid sick leave for themselves or a family member as defined by Labor Code 246.5(a) and 245.5(C), or for “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”   

Practical Implications for Employers

Review sick leave/paid time off policies to verify they comply with Los Angeles’s new requirements. As with state Paid Sick Leave Law any retaliation against employees for requesting to use paid sick leave or actually using paid sick leave, etc. is prohibited.

Further, while the new Ordinance allows employers to require reasonable documentation for absence from work for sick leave, note it is unclear whether this is permitted under California law.

Labor Code 247.5(b) states an employer is not obligated to inquire into or record the purpose for which an employee uses paid leave or paid time off. And in the FAQ regarding the state’s Sick Leave Law, the Department of Industrial Relations stated that if employees are subject to local sick leave ordinances, the employer must provide the provision or benefit that is most generous to the employee. As it is unclear whether “not obligated” is more generous than “may require” employers should consider consulting an employment attorney before asking employees to provide reasonable documentation.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May182016

Wage & Hour: DOL Doubles Down on Salary Threshold 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

White Collar Overtime ExemptionConsidering all of the political movements regarding minimum wage, equal pay and other wage and hour concerns over the past few years, most employers could read the handwriting on the wall regarding overtime rules. That handwriting has now become official:

The Department of Labor Final Rule regarding the minimum salary level required for the exemption of executive, administrative and professional employees was released today.

In the event of a conflict between federal and state laws, employers must comply with the rule most favorable to employees.  Prior to today’s Final Rule, an employee designated exempt under Federal law must have made at least $455 per week ($23,660 annually). This amount is substantially lower than the minimum salary required for exemption under California law, thus requiring California employers to comply with the state salary level test for exemption.

Here are the key changes: 

  • DOL Final Rule: Effective December 1, 2016, the "standard" salary level will increase to $913 per week (equivalent to $47,476 annually for a full-year employee), nearly double the current federal weekly threshold.  The DOL launched a Frequently Asked Questions page here.


  • California Employers: In this state, the current threshold is $41,600 ($3,466.67 monthly; $800 weekly), so California employers must comply with the higher Federal salary level (for exemption purposes) as of December 1st.  


  • Use of Bonuses to Satisfy the Test: Nondiscretionary bonuses and incentive payments (including commissions) may be used to satisfy up to 10 percent of the standard salary test requirement.

    Moreover, if an employee does not earn enough in nondiscretionary bonuses and incentive payments (including commissions) in a given quarter to retain their exempt status, the DOL now permits a "catch-up" payment at the end of the quarter. If the employer chooses not to make the catch-up payment, the employee would be entitled to overtime pay for any overtime hours worked during the quarter.


  • Automatic Updates: To ensure effectiveness of the salary level test, the DOL will update the standard salary compensation requirements every 3 years, with the first update taking effect on January 1, 2020.


  • Increase in California Minimum Wage Requirements: Note that last month, Governor Jerry Brown signed into law a bill gradually increasing California’s minimum wage to $15.00 per hour by January 1, 2022 (for employers with 26 or more employees).  As the salary level for exemption is an extension of California’s minimum wage (two times the state’s minimum wage), employers must pay close attention to the automatic updates of the DOL and the increase in California’s minimum wage, to determine which salary test they must comply with for the exemption. 

Here’s California’s newly approved Minimum Wage Schedule:  

Wage and hour and other employment laws can become very confusing given how state and federal regulations can trump one another. Employers should seek the advice of experienced employment counsel to stay compliant.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Apr282016

Living Like a Prince, but not Dying Like One

Tax Law Certified SpecialistTax Law Certified Specialist

 

 

by Michael Hackman

818.907.3279

 

 

The media seems to be concerned with two primary subjects lately, and both topics continue to trounce each other in turn on social networks for attention:

1. The presidential elections

2. The death of Prince, and his lack of a will

Prince at the Los Angeles Forum, 4.22.11

We’ll worry about the elections later, but right now we should clear up a misunderstanding. It’s not the lack of a will that is so important. For a musician of Prince’s caliber – it’s more the lack of a trust and overall estate plan that is most critical.

Here in California, one needs a trust to avoid probate courts if real property is involved – a will won’t help your heirs in that regard, and probate is a very expensive process. 

Having only a will is fine for those who have smaller assets to bequeath, such as small sums of money, a car, jewelry etc. In California, up to $150,000 of otherwise probatable assets can be distributed without requiring a probate.

For those with real estate and larger financial assets, a trust is needed. Additionally, a will only goes into effect when a person passes away, whereas a trust can ensure care and stability during life; which is much more of a concern for those of us who are not living like rock stars.

Even a rock star like Prince should have had an estate plan though, particularly if the rumors of his prescription drug addiction turn out to be true. If an overdose or some other tragedy had left the musician incapacitated, Prince could have used an estate plan to determine who makes health and business decisions until he recovered.

Intellectual Property and Right of Publicity

The website TMZ is reporting that Prince had no will, though it’s entirely possible one will turn up eventually. In the meantime, the musician’s sister filed documentation in probate court to have Prince’s bank, Bremer Trust, administer the estate.

If there really is no will, and if an old but valid will turns up, it is likely that it will be different than what he would do if making decisions in the year before his death. For now it seems Prince’s siblings will divide proceeds from the estate under Minnesota law.

If the bank is approved as Trustee, it will have to determine the values of Prince’s real property (mansion, grounds, memorabilia, etc.) as well as that of his intellectual property, including an issue called right of publicity. Right of publicity puts a value on the musician’s name and image.

We saw this same issue come up when Michael Jackson passed away. The case is still unresolved, eight years after the King of Pop died, and there is no immediate end in sight. Appraisers for the IRS and the estate argue over the value of Jackson’s master recordings, likeness, right of publicity and other details.

Estate Planning for Intellectual Property

Any artist who engages in creation for profit, inventors, and business owners, should include intellectual property rights in their estate planning.

1. Copyrights in the United States exist for the author’s life plus an additional 70 years (if the work was created after 1978). For a “joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter. Heirs may profit from copyrights until they come to term.

2. Duration of publicity rights (use of name, likeness, voice, image, signature) vary from state to state. In at least 13 states (including California), it runs for 70 years, from the date of the artist’s death.  

3. Trademark rights do not expire so long as they are actively used.  In most countries to maintain trademark registrations, the owner must renew the registrations every 10 years. 

4. For patents, the term is 20 years from the filing date of the application (for those patents filed on or after June 8, 1995. Design patents have a term of 15 years from issuance (for applications filed on or after May 13, 2015).

All intellectual property can be distributed among heirs, just as other property can. But ownership rights may be determined by actions the original author or owner of the intellectual property did during their lifetime.

For example, let’s imagine the album Purple Rain was never released, and left in the famous vault at Paisley Park. Prince may have bequeathed or transferred during his lifetime the original sheet music or recording to one heir, the rights to digital reproductions to another, and the right to turn the song or album into a movie, to a third.

Taxing Challenges for Prince’s Estate

Considering Prince’s habit of living large and presumably, having some unresolved debts;  his personal wealth; innumerable real property assets; and undetermined values for intellectual property assets, the probate courts will be a long time in unraveling how the musician’s estate should be administered. Currently, a very conservative estimate runs at $250 million, which could potentially result in $120 million going to state and federal governments. (Unlike California, Minnesota has a state estate tax.)

So what’s the lesson here? Don’t let nearly half of your net worth go to the government, when it could be better used by your family, friends, or a worthy charity.

Prince was apparently charitably inclined. If he had made gifts to charity through a will or trust, a significant amount of estate taxes could have been saved. Further, to the extent he was making charitable donations during his life, those beneficiaries will now no longer receive support from the music icon's largesse. Prince's legacy in this regard is apparently, no more.

 

Michael Hackman is a Certified Specialist in Tax Law (State Bar of California Board of Legal Specialization), and Chair of our Tax Planning and Trusts & Estates Planning Practice Groups. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120