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Thursday
May242012

Medical Marijuana Use Not Protected by ADA, 9th Circuit

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

 

In 2008, the California Supreme Court held in Ross v. Ragingwire that an employer may lawfully terminate an employee (or refuse to hire an applicant) who tests positive for marijuana, even if the marijuana use is for lawful medical purposes under California law.  Recently, the Ninth Circuit (the federal court with jurisdiction over California) held the Americans with Disabilities Act (“ADA”) similarly does not protect medical marijuana use.

The plaintiffs in the case entitled James v. City of Costa Mesa, were severely disabled California residents, who claimed conventional medicine and treatments failed to alleviate the pain caused by their impairments, but medical marijuana helped. 

Medical marijuana, as we know, is permissible under California law.  The plaintiffs obtained their medical marijuana through collectives located in Lake Forest and Costa Mesa, California. 

Concerned about the possible shut down of the collectives pursuant to various local ordinances excluding medical marijuana dispensaries, the plaintiffs brought suit in federal district court, alleging the cities’ actions violated Title II of the ADA.

The district court sympathized with the plaintiffs, but denied their application for a preliminary injunction on the grounds that the ADA does not protect against discrimination on the basis of marijuana use - even medical marijuana use prescribed by a doctor in accordance with state law - because such use violates federal law.

The Ninth Circuit affirmed the lower court’s decision, holding the ADA does not protect individuals who claim discrimination because of medical marijuana use.  The court reasoned the ADA excludes from coverage disabilities based on illegal drug use, and “illegality” is tied to federal, not state, law.  Because marijuana is still illegal under federal law, medical marijuana use is not covered under the ADA, even if states such as California have legalized the medical use of the drug.

Disability Claims Defense LawyerAgain sympathizing with the plaintiffs’ position, the Court held:

We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity.  We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs…Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiff’s medical marijuana use.

While the James v. City of Costa Mesa decision did not arise in the employment context, the court’s holding is still relevant for employers.  Employers should note that while it is not unlawful to discriminate against an applicant or employee on the basis of their marijuana use (even if for medical reasons), it is still unlawful to discriminate based on an underlying disability, including those for which the individual may be using the medical marijuana. 

Accordingly, employers should use caution in handling these situations to minimize risk and ensure they can demonstrate that any adverse employment action was based solely on knowledge of illegal marijuana use and not on any underlying disability.

Nicole Kamm is an Employment Defense Lawyer who provides counsel and training for employers to avoid discrimination, harassment and other worker claims. Contact her via e-mail: NKamm@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.

 

 

Wednesday
May232012

California Employment Law – Criminal Treatment of Employers

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

Picture this: The owner of a small company in Los Angeles is in an office, calmly tackling the challenges of day-to-day business needs, when all of a sudden a task force of officers enter wearing guns.

Sound like the latest episode of CSI or some other fictional, televised cop show? Think again.

This year, the California Labor Commissioner's Office, a/k/a the Department of Industrial Relations (DIR) Division of Labor Standards Enforcement (DLSE), activated their own Criminal Investigation Unit (CIU) to deal with misbehaving employers. And yes, they'll be wearing guns.

In addition to the state's civilian administrators, employers in California may now have to contend with armed peace officers who underwent and completed police academy training. The CIU will conduct investigations, inspections and arrests; file criminal charges; and serve subpoenas.

According to the Labor Commissioner's Office, the CIU task force will particularly look for employers who:

  • Violate Worker's Compensation Laws
  • Engage in theft of labor
  • Pay wages with bounced checks or insufficient funds
  • Employ minors in violation of labor guidelines
  • Employ unlicensed farm labor contractors or garment manufacturers
  • Take kickbacks on public projects
  • Impede Labor Commissioner investigations

In addition, the CIU will train representatives of the DLSE to spot employers who may be guilty of any of the above activities.

Granted, a spokesperson for the DIR says they will look for employers who are engaged in "flagrant mistreatment of workers." But the activation of such a task force serves as a good reminder for ALL employers:

Make sure you keep accurate time-keeping records, and never try to cheat the system. If you have questions about California Labor Law, or your employee policies, contact me immediately.

Sue M. Bendavid is the Chair of our Employment Practice Group. You may reach her via e-mail: sbendavid@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.

 

 

Wednesday
May092012

Getting Clear on Creditor Protection: The Limitations of the Revocable Living Trust

 

by Robert A. Hull

People often believe that if they set up a revocable living trust, and put their assets into the trust, their assets are protected from creditors.  

While a revocable living trust can provide numerous benefits – namely, the distribution at death of one’s property without court supervision and, possibly, substantial tax advantages – such a trust does not provide creditor protection.

General Rule of Thumb: The ability of a creditor to reach your assets is directly proportionate to how much control you can exercise over those assets (and/or whether you are a beneficiary of that trust, in which case the trust is called a “self-settled” trust). The greater control you have over your assets and/or benefit you derive from your assets, the greater chance a creditor can reach those assets.  

If you are the trustee of your revocable living trust, you are able to effectively control your assets as much as you can without such a trust.  You can amend or revoke the trust (hence, the name “revocable” trust) and withdraw assets from the trust, at will.  Thus, since you have the same degree of control over your property, creditors may access the trust’s assets almost as easily as they can access your assets which are not in such a trust.

On the other hand, the less control you have over those assets, the less chance a creditor can reach those assets.

In the most obvious case, if you give away assets, you no longer have control of those assets.  Hence, a creditor cannot normally reach them (unless there are mitigating circumstances such as the transfer was a fraudulent attempt to evade those creditors or a preferential transfer prior to a bankruptcy filing, etc.). 

However, you can achieve some protection from creditors and still maintain a degree of control over your assets for a period of time, even though you are effectively giving your assets away. 

 

Three Ways to Better Protect Your Assets  from Creditors

 

1. Irrevocable Trusts: Certain people set up “irrevocable” trusts for the benefit of their children, etc.  With these trusts, you are making a present gift of property, the bulk of which the beneficiary may receive at your death, or some other time in the future (note:  the gift needs to qualify as a present interest to be eligible for the gift tax annual exclusion). 

However, as trustee, you can still manage the property in the irrevocable trust until that future time, although you will not want to hold powers which will cause the trust to be included in your taxable estate at your death.  This is especially helpful when gifting business or real property interests.  Remember though, that you cannot modify these trusts, or remove property from them, without complying with state law and without risking its tax treatment, and in some cases exposing the trust to taxation.  Hence, your creditors cannot normally reach such property (except if there are mitigating circumstances, as mentioned above).

2. Gifts: In addition, you may wish to make a gift to heirs, but asset protection of such heirs may be a consideration (e.g., minimizing a child's exposure to divorce, tax problems, professional liability and general creditor problems).  Protection may be achieved to some degree by leaving the beneficiary’s bequest in trust, rather than gifting assets outright.

3. Business Structures: You may set up a business entity structure which can make it more challenging for creditors to reach your assets.  But, setting up and maintaining such entities, and also irrevocable trusts, involves some time and expense (e.g., in certain cases, the filing of annual income tax returns, payment of annual fees, substantial legal and accounting fees, etc.).

There are many terrific reasons for executing an estate plan, including a trust and a pourover will.  However, if creditor protection is an important consideration for you, you need to carefully implement the right devices to minimize the risk of creditors successfully coming after your property.

 

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
May032012

Tort Reform – Caps on Damages Cause More Pain than Good

Personal Injury Attorney Los AngelesInjury Attorney San Fernando Valley 

 

by David B. Bobrosky
(818) 907-3254

 

Some states put “caps” on damages awarded by juries in tort, or personal injuries cases.

A “cap” is a law that puts an arbitrary ceiling on the amount of damages a judge or jury can award in a case, regardless of the facts or evidence presented in a specific case. The types and amounts of caps vary by state, and can be imposed on parts, or all aspects of an award--- including compensation for actual medical costs, loss of earnings, pain and suffering, and/or punitive damages.

 Personal Injury AttorneyCaps were recently in the news again because of the Virginia Tech shooting case. The Virginia Tort Claims Act caps jury awards at the maximum limits of a liability policy. This is why the parents of two students who were killed in the Virginia Tech shootings in 2007 may only be awarded $200,000, even though the jury who heard the case awarded $8 million to the two families.

 

Other Painful Outcomes in “Tort Reform”

 

In Nebraska, there is a total cap of $1.25 Million on all damages. This includes pain and suffering, as well as money for past and future medical expenses.

In a case featured in the documentary Hot Coffee, a couple who gave birth to twin sons alleged that their doctor failed to identify a problem during the mother’s pregnancy, despite multiple complaints by the mother. When another doctor discovered the problem days later, the mother was rushed to the hospital where a further delay of an emergency c-section was alleged to cause further damage to her son.

Doctors testified that the young boy would need life-long medical care, including multiple surgeries. A jury awarded the family $5.6 Million for these expenses. Despite the jury’s findings, the award was reduced to $1.25 Million due to the arbitrary cap on damages. Thus, the family will not have sufficient money to care for their son. The burden will now most likely fall to the public.

Graphic courtesy of Consumer Attorneys of CaliforniaHere in California, we are limited by MICRA, or the Medical Injury Compensation Reform Act of 1975, which caps non-economic damages in medical malpractice cases at $250,000. This is a cap that has not increased since its inception, despite nearly 40 years of inflation. If it had increased, it should be over $1 Million by now.

When Steven Olsen was two, he tripped and fell on a sharp stick that impaled the front of his mouth, face and sinus cavity. His parents took him to Children's Hospital of San Diego where the doctors repaired the damages and tested for infection, and then sent him home.

A few days later, Steven came down with a fever. His parents took him back to the hospital and requested a brain scan in light of his recent accident. The doctors ignored the request and diagnosed meningitis. Unfortunately, Steven had a ruptured abscess caused by the accident with the stick, and suffered serious brain damage as a result.

Plaintiffs alleged that had the physicians checked the lab results of the infection tests, or had they run a brain scan as requested, it was likely Steven would not have suffered the brain damage.

The jury awarded the Olsens just over $7 million in pain and suffering, but the $250,000 MICRA imposed cap reduced that figure to less than four percent of the intended award.

 

Caps Do Not Prevent So Called “Frivolous” Lawsuits

 

Proponents of Tort Reform cite "frivolous" lawsuits, high insurance premiums and better access to health care as reasons to put limits on damages.

But the truth of the matter is that arbitrary caps do not result in reduced premiums, but rather increased profits for the insurance companies. This is why the leaders of Tort Reform are generally the insurance companies.

Personal injury attorneys are not against businesses making profits, or doctors. In fact, my firm does not even handle medical malpractice cases. However, arbitrary caps do not do anything to prevent so called “frivolous” lawsuits – they merely deprive the most seriously injured and damaged people compensation awarded by a jury of their peers.

 

David B. Bobrosky is an Injury Attorney who advocates for the rights and safety of individuals. Contact him via e-mail: dbobrosky@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
May012012

Another Blow for Property Owners Challenging Foreclosure

Business LitigationSan Fernando Valley Business Litigation Lawyer

Nicholas Kanter
818.907.3289

When challenging a foreclosure sale, property owners look to defects or irregularities in the foreclosure process, which is strictly regulated by California’s Civil Code, to have the sale enjoined or rescinded.  Recently, one section of the Civil Code has received a lot of attention.

Civil Code Section 2932.5 requires the assignee of a mortgage to record the assignment prior to exercising a power to sell real property.  Parties have relied on this section to challenge foreclosure sales where a deed of trust is assigned, but not recorded, until after the sale. 

California case law, dating back to 1908, established that the predecessor statute to section 2932.5 (section 858) applies only to mortgages, not deeds of trust (Stockwell v. Barnum). 

However, federal and state courts have recently disagreed over the application of Section 2932.5 to deeds of trust.  On the federal side, e.g., Tamburri v. Suntrust Mortgage, Inc., (2011), and In re Cruz (2011), courts have applied Section 2932.5 to deeds of trust.  On the state side, the court in Calvo v. HSBC Bank USA, N.A. (2011), followed the Stockwell decision.

In support of Stockwell and Calvo, the Court of Appeal in Haynes v. EMC Mortgage Corp., (filed April 9, 2012, publication ordered April 24, 2012) found that Section 2932.5 does not apply to deeds of trust.  The Haynes court rejected Haynes’ reliance on the federal decisions finding:

We of course, are not bound by federal decisions on matters of state law…While our Supreme Court has noted in passing on issues other than the interpretation of section 2932.5, that “a deed of trust is tantamount to a mortgage with a power of sale” [citation], the court has not addressed section 2932.5 and the statute, by its plain terms, does not apply to deeds of trust.  

The court also explained why section 2932.5 applies to mortgages but not deeds of trust:

Section 2932.5 requires the recorded assignment of a mortgage so that prospective purchaser knows that the mortgagee has the authority to exercise the power of sale.  This is not necessary when a deed of trust is involved, as the trustee conducts the sale and transfers title. 

The Haynes decision, along with the holding in Calvo, reinforces long-standing California case law that Civil Code Section 2932.5 does not apply to deeds of trust, thus all but taking away a party’s ability to challenge a non-judicial foreclosure sale based on an unrecorded assignment.  

Nicholas Kanter is a Business Litigation Attorney in our Real Estate Practice Group. Contact him via e-mail: nkanter@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.

 

 

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