San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number
Wednesday
Jan282015

California Social Host Laws: Be Responsible; Beware Liability

Wrongful Death Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

Forget the drama, trash talk and player scandals that may have occurred this past year. The final football matchup of the season is coming, and there's a bigger issue at stake for those planning on throwing parties this weekend – that of social responsibility and liability.

Wrongful Death Liability

Last year, the California Supreme Court ruled unanimously that party hosts may be held legally liable when an underage drinker causes harm to others. The ruling came in favor of a family of a college student who was killed by an underage drunken driver. The hostess of the party (who was underage herself) charged her guests $3-5 admission to help fund the party. The court said this cover charge essentially turned the party into a "pop-up nightclub", and thus made the hostess liable, as she sold alcohol to a minor.

Upon hearing the defense's arguments, the Court said among other things, that "a social host can retain her immunity by simply refraining from charging any of her invited guests."

As of 1978 the state legislature decided that liability for the death or injury of someone hurt or killed by a drunk driver falls on the driver, rather than on the private individual who provided the driver with alcohol, since most private parties have open bars where the guests serve themselves. But the law changed in 2011, with a new caveat: a host who knowingly serves alcohol to a minor, can now be held liable.

California Civil Code §1714(d) states:

(1) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

 (2) A claim under this subdivision may be brought by, or on behalf of, the person under 21 years of age or by a person who was harmed by the person under 21 years of age.

California Social Host Laws and Overindulging Adults

Though the laws for dram shops (businesses that sell alcohol) and social hosts generally protect those serving alcohol from liability, the vendor or host can still be held liable for serving a minor, as stated in Civil Code §1714(d) above; and may be found guilty of a misdemeanor, for serving "habitual or common drunkards" under Business and Professions Code §25602.

Even though over-serving drunkards may only constitute a misdemeanor, there's still the question of social responsibility. Just remember this rule of thumb for your Super Bowl party: more food, less alcohol, no charge…and never give alcohol to a minor.

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group. Contact him by phone: (818) 907-3230, or by email: ashapiro@lewitthackman.com.

 

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.

Monday
Jan262015

No Room at Nut Tree. But Why?

Litigation Los AngelesEnvironmental & Business Litigation Attorney 

Stephen T. Holzer
818.907.3299

 

Real Estate Litigation AttorneyA pregnancy clinic that offers ultrasounds and counseling to expectant mothers signed a lease last October at the Nut Tree Road Medical Arts Center in Vacaville California. Alpha Pregnancy Clinics was looking for more square footage and a more medical environment – Nut Tree seemed to offer a facility that suited the clinic's needs. Alpha delivered a signed lease and deposit check to the broker agent on October 31, 2014.

Premier Commercial, the leasing agency representing the building's owners returned the unsigned lease and the uncashed deposit check five days before Alpha was to receive the keys for the office space.

The letter from Premier's agent dated November 10, 2014 states, "the ownership informed me only of their decision not to move forward, stating that the lease was not a good fit for the building". Premier's broker further noted that the owners did not like the short term – the lease was good for one year.

Speculation arose concerning the "not a good fit" portion of the letter. Alpha is a church-funded clinic. The organization's counseling highlights abortion alternatives. And the office space the clinic intended to lease was right across the hall from a Planned Parenthood clinic.

Hence, a lawsuit (copy attached). The lawsuit filed on behalf of the Alpha pregnancy clinic against the building's owners by the Pacific Justice Institute alleges the lease was not honored because of Alpha's religious views and opposition to abortion, a violation of California's Unruh Civil Rights Act. The Institute's complaint says the medical center's owners are obligated to lease the office to Alpha and that the owner's refusal constitutes a breach of the lease agreement.

Further, the owners' refusal is "willful, oppressive, and done with malice because of an underlying animus towards Alpha's membership in a protected religious group." A Solano Superior Court hearing is tentatively scheduled for April.

Lessons for Commercial Landlords

The lease says (it's attached to the Complaint):

3.2 Tenant shall not use, occupy or permit the use or occupancy of the Premises for any purpose which Landlord, in its reasonable discretion, deems to be illegal, immoral or dangerous; permit any public or private nuisance; do or permit any act or thing which may disturb the quiet enjoyment of any other tenant or occupant of the Building.

The owners have a colorable claim that the proximity between the Alpha pregnancy center and the Planned Parenthood office might disturb the “quiet enjoyment” of the Planned Parenthood tenant and be a breach of the quiet enjoyment covenant that is presumably contained in that existing tenant’s lease. On the other hand, given the Unruh Act’s proscription of discrimination against the Alpha pregnancy center because of its religious views, the issue is hardly free from doubt, especially since the prospect of clashes between Alpha and Planned Parenthood is at this point only speculative. 

Landlords with controversial tenants who may have an Unruh Act claim need to develop a record to show that any rejection of leasing to that prospective tenant is not motivated by a discriminatory motive but rather reflects a legitimate business reason for the rejection.  Merely having the leasing agent say that the rejected deal is not “a good fit” is likely inadequate—the agent here should have cited a specific, non-proscribed business reason for the rejection.

It is true that the agent claimed a reason for the owners’ rejection was that the owners did not want a short-term (one-year) lease.  But instead of outright rejecting Alpha as a tenant, the owners would have been smart to counter-offer a more extended lease—e.g., 5 years—and possibly thereby induce Alpha, rather than the owners, to be the rejecting party.

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Contact him via email: sholzer@lewitthackman.com, or by phone: 818.907.3299. 

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.

Monday
Jan122015

Bay Area Blues: San Francisco's Employers/Franchisees Face Retail Workers Bill of Rights

 

by Bryan H. Clements

Doing business in San Francisco can be difficult, to say the least. At $10.74/hour, the city already had the highest minimum wage in the country at the end of 2014. On January 1, 2015, San Francisco employers began shelling out $11.05/hour; on May 1, 2015, they will begin paying $12.25/hour; and on January 1, 2018, they will pay $15/hour (a 39.6 percent increase over three years).

Franchise Employers CaliforniaNevertheless, franchisors, franchisees and other multi-unit business owners doing business in San Francisco, referred to as “Formula Retail Establishments,” will soon see their resolve to continue doing business in the city further tested.

On November 25, 2014, San Francisco's Board of Supervisors (BOS) unanimously approved two ordinances, collectively referred to as the “Retail Workers Bill of Rights.”  These ordinances are the first of their kind in the United States and are being added to the Police Code.

Formula Retail Establishments Defined

The Retail Workers Bill of Rights applies to employers with 20 or more employees and with 20 or more locations worldwide – if one or more of their locations operates in San Francisco. Formula retailers include companies with at least two of the following: 

  • A Standard Array of Merchandise

  • Standard Facades or Interior Designs

  • Standard Signage

  • Use of  Common Trademarks/Servicemarks

  • Standard Uniforms 

San Francisco’s definition of formula retail businesses includes retail trade businesses, movie theatres, hotel chains, food service businesses (including restaurants and bars) and banks. It also includes businesses providing professional, financial (accountancies, insurers, etc.), repair (plumbing, closet installation, oil change, etc.) and cleaning and janitorial services.

Franchised businesses will typically fall within the definition of a formula retail business, so franchisees can expect to be disproportionately impacted.

Groups advocating for franchise companies have attacked the ordinances claiming they unfairly target franchised businesses. For example, the day following the BOS’s vote, Robert Cresanti, Executive Vice President, Government Relations & Public Policy of the International Franchise Association, the nation’s most powerful lobbying group for franchisors, penned a sharp letter to the Mayor of San Francisco urging him to veto the ordinances.

Despite these protests however, the Mayor neither signed nor vetoed the ordinances, and they became law.

Employer Compliance with SF's Retail Bill of Rights

California Business Lawyer

The Retail Workers Bill of Rights will affect employers in many ways. To comply, formula retailers must: 

  1. Additional Hours: Offer additional hours to part-time employees before hiring new employees or engaging temporary workers.

  2. 90 for 90: If the company is sold, successor employers must retain all current employees who have been with the company for at least 90 days, for a period of 90 days.

  3. Predictability Pay: Excepting certain circumstances, employers must provide employees with two weeks’ advance notice of their schedule. Employers providing less than seven days' notice must pay one hour of extra pay per changed shift; and two hours of extra pay for less than 24 hours' notice, per changed shift.

  4. On-Call Predictability:  Employers must give employees at least 24 hours' notice before cancelling or rescheduling an on-call shift.

  5. No Part-Time Prejudice: Part-time employees will start at the same hourly wage as full time employees, and be provided with the same opportunities to advance.

  6. Retain Records: Employers must retain written records pertaining to written offers of employment, offers of additional hours, employees retained during a change of control, and work schedules for three years. Failure to preserve records will be deemed to be a failure to comply. 

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
Jan062015

Show Me the License: Is Your Company Ready?

 

Business Litigation Attorney EncinoBusiness Litigation Attorney

 

by David Gurnick
818.907.3285

 

Good record-keeping is a burden. But doing so is important. Here is an example of why it is important to keep good records of all software licenses.

Business Software Licensing LawThe Business Software Alliance is a consortium of large software and tech companies like Adobe, Intel and Microsoft. One of BSA’s missions is to stop software piracy.

BSA advertises, asking the public to report piracy. BSA’s ads encourage workers to report their employers for potential unauthorized software, via a toll free number or webform. BSA offers cash rewards. Their website notes that in a recent year, they investigated over 15,000 piracy reports. Many of the reports are from disgruntled ex-employees, seeking revenge for real or perceived grievances.

BSA contacts businesses suspected of using unauthorized software and often demands that the company do a self-audit and inform BSA of all unlicensed software in use. BSA then negotiates settlements, typically a multiple of the license fees that would have been charged. BSA claims the multiplier is essential to deter piracy. The multiplier also generates more revenue for BSA.

Company self-audits might identify typical uses of software programs, for example Adobe Photoshop, Microsoft Office, or other programs. Sometimes a company will respond pointing out that the software was purchased properly and is being used legitimately. One of BSA’s possible responses: “Show us the licenses.”   

Software Licenses: What Does the Law Say?

What if the software was legitimately purchased many years ago? Who keeps copies of old licenses and purchase receipts? 

Most record retention policies allow destruction of documents after four, five or seven years. Many companies continue to use software for a decade or more. Even a retention policy of 10 years would not produce software licenses or purchase receipts for software purchased that long ago. 

Having no proof of purchase and no copies of licenses could potentially result in financial penalties for many companies.  Because, under the law, a software maker like Adobe, Microsoft or BSA as their representative, can prove infringement by showing just two facts: 

  1. That it owns the copyright for the software (easy for Adobe to prove with regard to Photoshop, and for Microsoft to prove with regard to Windows, Word or Excel); 

  2. The company used the software (also easy to prove, especially when the defendant acknowledges using these programs). 

Under the law, the company’s response – that the software was legitimately purchased, and is used under a proper license – is a legal defense.

The law says it is the company’s burden to prove it has a license from the copyright owner. The proof is a copy of the license or proof of purchase. A company that cannot produce a license or proof of purchase may be found liable and labeled a “pirate.”

For a company that cannot readily find such records, there might be secondary methods to prove software was licensed. 

A company might ask the supplier of the software if it still has records of the original sale. The software maker might have records showing the original software purchase was registered by a warranty registration. A software consultant or technology officer may have other records proving the purchase, based on requests for assistance or consultation with the maker over the years.  Old billing and payment records might be unearthed, to see if they reflect the original purchase. But often such records are difficult, or impossible to find.

For most companies, the message is clear: Keep the purchase records and licenses for all software, permanently.

Because copyright ownership can last over a hundred years, and it is always the user’s burden to prove proper licensing, these records may be essential, even many years after the software was first purchased. It is easy to take a photo or screen shot and save these in electronic files. Then, if you are contacted by BSA or someone else demanding that you prove your software is authorized, you will be readily able to do so.

With BSA asking potentially disgruntled employees to report, this is a relatively simple step for proving you're licensed to use.

David Gurnick is a business litigation, franchising and licensing attorney. Contact him directly for more information at 818.907.3285 or email: dgurnick@lewitthackman.com.

 

 

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
Dec022014

California's New Sick Leave Law: New Posting & Notice Requirements Effective January 1

Lawyer for EmployerEmployment Defense Attorney

 

 

by Nicole Kamm

818.907.3235

 

 

Big changes await employers in 2015, but even before the New Year begins, employers should add this item to their lists:

Download the new Division of Labor Standards Enforcement (DLSE) poster regarding California’s new sick leave law and Notice to Employee (links below), which now includes required information about paid sick leave. 

 

Employer Compliance

 

The new poster notifies employees of their rights under Assembly Bill 1522, or the Healthy Workplaces, Healthy Families Act of 2014 – which obligates employers to provide most California employees at least one hour of paid sick leave for every 30 hours of work, or no less than 24 hours (three days) per year.

Employers must display the poster in a conspicuous location, i.e. in the break room, near the time clock, etc. Employers may use the template poster or create their own, however self-made posters should make sure to comply with the requirements of the new Labor Code §247.

While an employee’s entitlement to paid sick leave does not go into effect until July 1, 2015, according to the DLSE website, the posting requirement is effective January 1, 2015. Click here to download the new DLSE Paid Sick Leave Poster.

The DLSE also issued a revised "Notice to Employee," which must be given to all non-exempt employees. As required by the amended Labor Code §2810.5, the notice must include information regarding how sick time is accrued and state that an employer may not retaliate against or terminate an employee for using paid sick leave.

In addition to the previous required  information such as name, address, pay, etc., the employer will now need to choose one of four options on page two of the form, indicating:

□ Accrues paid sick leave only pursuant to the minimum requirements stated in Labor Code §245 et seq. with no  other employer policy providing additional or different terms for accrual and use of paid sick leave.

□ Accrues paid sick leave pursuant to the employer’s policy which satisfies or exceeds the accrual, carryover, and  use requirements of Labor Code §246.

□ Employer provides no less than 24 hours (or 3 days) of paid sick leave at the beginning of each 12-month period.

□ The employee is exempt from paid sick leave protection by Labor Code §245.5. (State exemption and specific subsection for exemption):______________.

As with the poster, the revised Notice to Employee must be used for all new hires starting January 1, 2015. Employers who already provide paid sick time will need to review their policies to ensure compliance with the new law. 

Nicole Kamm is an attorney in our Employment Practice Group. Call her direct line: 818.907.3235, or email: nkamm@lewitthackman.com for more information.

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