I WON A JUDGMENT: NOW WHAT?

One incredibly important issue in civil litigation that many lay-people do not properly understand is the importance of being able to collect from the other side.  To be honest, some lawyers do not adequately understand the complexities of how one actually goes about turning that piece of paper known as a “judgment” into real dollars and cents.

Good lawyers know the holy “trifecta” that you need to have a good case; liability, damages, and the ability to recover.  In other words, you need to be able to prove to a judge or jury that the other side is liable, under the applicable law and facts, for your “injury” (be that physical, mental, monetary, or otherwise).  You then need to be able to prove to the judge or jury that your injury is capable of being converted into a dollar figure, and that the law provides a way to recover for that injury.  Lastly, assuming the judge or jury finds in your favor, you need to be able to collect on the judgment you win.

What many lay-people do not understand is that the last factor, collecting, can at times involve as much work as winning a trial.  Once you have “won” a judgment against the opposing party, you need to be able to collect on it.  Factors such as bankruptcy, and defendants with no assets, or those who suddenly transfer their assets to another individual, all complicate this process.  It is prudent to take this consideration into account from the moment legal action is contemplated.

As an example of how this issue plays out in the real world, plaintiffs from a class action lawsuit litigated in Ecuador won an approximately $18,000,000,000.00 judgment against Chevron in 2011.  They are currently in the process of trying to recover on that judgment, which Chevron is contesting as fraudulent.  This is the largest judgment ever won in an environmental lawsuit, yet thus far the plaintiffs have recovered nothing.

In California, the law provides many procedures to recover on a judgment, from a “till tap” in which someone actually takes money out of a businesses’ cash register or as contained on the premises, to a sweep of bank accounts.  There are also pre-trial procedures which can help seize assets pending a trial.  If you have a question on recovering on a judgment, or opposing recovery, our firm has experience and knowledge on these issues.  We can also help you plan properly before serious legal action is taken.  Do not hesitate to contact as at (916) 565-8161 or visit our Sacramento Attorney website.

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BUSINESS OWNERS: GET IT IN WRITING

If you’ve ever had the pleasurable experience of spending significant time with an attorney, you realize they absolutely love documents.   Paper, whether it is an incriminating email introduced at trial, or a simple promissory note providing repayment terms, is a fixation for most lawyers.  The reasons for this are fairly simple; people’s memories not only fade, but recollection of a specific event often varies considerably between people despite the fact that they may have experienced the exact same event.  Documents, however, have a semi-permanence that lasts through time.

Attorneys also realize, as do savvy business owners, that courts also love documents.  Courts will routinely enforce written contracts despite the fact that one of the parties to the agreement claims to have a different understanding of the “actual agreement”.  The words in a written agreement make a difference, and no one should casually sign any important written agreement.

One of the best ways small business owners can protect themselves is to be vigilant about the written agreements they sign.  Many modern written agreements are incredibly complex, and the terms used can have dire consequences if one does not understand them.  Remember that the agreement is written on paper, not stone, and terms are negotiable.

Business owners can also help their business by having important understandings and agreements put in writing.  That way all parties can understand going forward what is expected of them, and what they can expect of the other side.  Assumptions and unspoken or unaddressed issues can derail the best intentions.

If you need an agreement prepared, or you have an agreement that needs review, do yourself a favor and have experienced counsel provide their opinion.  Our firm handles these issues daily.  For more information feel free to call our firm, or check out additional information at:  http://radlegal.com/law-practice-business-corporate-law-sacramento-ca.php

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TRADEMARK AND PATENT ‘TROLLS’ DEMAND THEIR PRICE TO CROSS THE BRIDGE

Those of you savvy with the internet may be familiar with the term “trolls”.  It generally refers to individuals who post inflammatory or provocative messages online, often in an attempt to harass others.  The term “patent troll” refers to an individual or company who buys and then enforces patents against an alleged “infringer”, usually in an opportunistic manner.  Blunter individuals would refer to them as extortionists.  Similarly, the term “trademark troll” refers to an individual or company who attempts to register and enforce a trademark without any real intention to use that trademark, in an attempt to force others who use the same (or a similar) mark to pay them.  The “troll” part of the name is a reference to the attempt to collect a toll from vulnerable people.

For the most part trademark trolls have had little success, as simple registration of a trademark does not give exclusive rights over the mark; Courts look for ‘actual use’ of the mark in commerce.  Unfortunately patent trolls are another matter. These individuals often purchase dozens if not hundreds of patents cheaply from bankrupt companies, and then file demands or lawsuits against any company arguably infringing on the patent.  Often the claims are legally specious, and rely upon the theory that a quick pay-out will be made rather than incur the costs of litigating the matter.  Texas has apparently become a hotbed for these types of companies, and the issue is expected to continue to grow in 2012.

Trademarks and patents are not the only areas in which opportunistic individuals can prey.  It is important that one understand their rights and obligations when buying or selling a business, including the rights and obligations that may be associated with the goodwill of the business, any potential trade secrets, and express and contingent liabilities.  An ounce of prevention in this regard can often avoid substantial expenses and stress later. If you have any question about your legal rights do not hesitate to contact our offices.

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New Employment Law Changes for 2012

Last month, Governor Jerry Brown signed into law numerous new addendums and edits to the California Labor Code, effective beginning January 1, 2012 for any entities doing business in the state. We have provided below a brief summary of some of the key provisions of the new laws. Employers may wish to take note of these changes and be prepared to potentially revise their employment practices and policies to comply with the new codes.

 

“Wage Theft Prevention Act” AB 469 – created Labor Codes §2810.5 and §1197.2; amended Labor Codes §1174 and §243 Employers must provide newly hired non-exempt employees with written notice of information about their pay such as rate and timing of pay, including commissions and overtime, and any allowances claimed as part of minimum wage. Additionally, new hires must be supplied with information about the employer including any “doing business as” names, contact information, and the address and telephone number of the employer’s workers’ compensation insurance carrier. If any changes occur to this information, employers must provide written notice to employees within seven days. The Labor Commissioner is required to create a template for this purpose which employers may use. Additionally, employers are now required to keep employee payroll records for three rather than two years. AB 469 also sets stringent new regulations on employers regarding wage violations. An employer who willfully fails to pay a final court judgment or order for wages within 90 days may be criminally liable for a misdemeanor offense. If convicted, the employer can be fined up to $10,000 or imprisoned for six months if the amount owed is less than $1,000. If the amount exceeds $1,000, the employer may be fined between $10,000 and $20,000 and imprisoned for up to a year. Furthermore, until the employer posts a bond or pays the wages, the court may grant an order prohibiting the employer from conducting business in the state.
Independent Contractor Misclassification SB 459 – created Labor Code §226.8 and §2753 Imposes fines on employers for “willfully” misclassifying a worker as an independent contractor and gives joint liability to any non-attorney consultant who advises an employer to misclassify a worker. The initial fine ranges from $5,000 to $10,000 and repeat violations can be fined from $10,000 to $25,000 per infraction. Additionally, the employer is required to post a notice prominently on its website stating its violation of the code. The Labor and Workforce Development Agency also must report a licensed contractor in violation of this law to the Contractors State License Board, which must then pursue action against the licensee.
Employee Medical Leave AB 592 and SB 299 – amended Labor Codes §12945 and §12945.2 SB 299 requires an employer to provide full health coverage for up to four months during Pregnancy Disability Leave (PDL) at the same level and under the same conditions that would have been provided had there been no leave, regardless of whether or not this worker also qualifies for the California Family Rights Act (CFRA). AB 592 clarifies existing laws against refusal to allow a worker’s right to leave under PDL or CFRA by inclusion of the phrase that it is an unlawful employment practice “to interfere with, restrain or deny the exercise or attempt to exercise” rights to a leave of absence under these laws.

Note: The passage of AB 592 was contingent on the passage of SB 299 – both bills were successfully passed.

Commission Agreements AB 1396 – amended Labor Code §2751 Employers who pay employees commissions must have a written and signed contract containing the method of calculating and paying commissions. This contract, even after expiration, will be presumed to be in full force and effect until termination of employment or until the contract is specifically superseded.

Note: This law does not take effect until January 2013.

Employer Credit Checks AB 22 – created Labor Code §1024.5 Bans most employers from obtaining credit information about applicants or employees (with exceptions for certain positions including law enforcement, some positions at financial institutions, positions involving access to proprietary trade secret information, and others). If a credit report is necessary and legal, the employer must provide written notice to the applicant or employee that a credit investigation is being conducted, citing which specific exception makes it legal to obtain the report. If an applicant is denied a position on the basis of information in a credit report, the applicant must be supplied with the name and contact information of the credit reporting agency that supplied it.
E-Verify
AB 1236 – amended Labor Code  §1391.1
Allows employers to use E-Verify to determine employees’ work eligibility on the basis of I-9 citizenship forms and social security information, but bans counties and cities from requiring private employers to use these checks.
Definition of “Gender” AB 887 – amended Labor Code §3600 Amends California’s antidiscrimination laws to clarify that “gender expression” and “gender identity” are protected classes covered in the definition of the term “gender” already included in these laws.  “Gender expression” refers to a person’s gender-related appearance and behavior and “gender identity” refers to what gender a person identifies with, regardless of the individual’s biological sex at birth. This also strengthens protection for equal health coverage for registered domestic partners and married spouses.
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New Rad|Kro Attorney

We are pleased to announce the addition of a new attorney to our practice, Kristine Scribner. Kristine is a graduate of McGeorge School of Law and UC Davis. She is experienced in many areas of law including intellectual property, civil litigation, employment law, and business disputes and will serve as a great asset to our clients who are facing issues like these. In her free time, Kristine enjoys taking day road trips and cooking. We are excited for the quality legal expertise and service she brings to our firm and to our growing client base.

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Who Usually Wins At Trial

One issue that may not be discussed in the litigation context as often as it should be is:  “who usually wins this kind of case… plaintiff or defendant?”  Of course, this question is, by its very nature, broad and ill-defined. It fails to take into account that every case stands on its own and the presence or absence of a few key facts can often result in a win over a loss.  In other words, the facts of each case vary considerably, and thus generalizations are often hard to make.

While understanding that this principle is true, there are still patterns to be gleaned from the awards juries and judges make at trial.  With this in mind, take a look at some of the statistics found in certain types of cases.

A study of medical malpractice cases in California from 1993 to 1999 shows that approximately 1,283 medical malpractice cases went to verdict.  Plaintiffs “won” in only 310 of those cases, a success rate of 24.1%.[1]

From a 1990s report on auto accident jury verdicts in California, the statistics show that plaintiffs won at trial approximately 61% of the time.  However, these verdicts varied statewide with plaintiffs in Los Angeles County only winning approximately 54% of the time, versus plaintiffs in Alameda County who won approximately 60% of the time.[2]  What exactly accounts for this statistical variation may be any number of factors, including regional bias and prevailing attitudes, cultural make-up, and the severity of the cases making their way to trial.

When it comes to employment wrongful termination lawsuits in California, the statistics show that in 1992 plaintiffs won approximately 52.4% of jury verdicts, whereas only four years later  in 1996,  plaintiffs only won 46.5% of jury verdicts.[3]  Of these cases, unlawful discrimination was alleged in 56% of the cases, and unlawful retaliation in 31% of them. The other cases usually involved contract matters where the employee claimed there was an express or implied agreement not to terminate them except for good cause.  The statistics showed that plaintiffs were less successful in discrimination and retaliation cases than they were in contract cases, and that the contract cases were likely to be filed by executives, professionals, or higher level managers.  The employment law statistics can be compared to the overall success rate for all tort cases in selected California counties, in which plaintiffs won between 45.7% to 73.3% of the time in matters involving financial harm.[4]

A 2005 report by the U.S. Department of Justice found that at a national level, viewing all types of cases as a whole, plaintiffs won approximately 53.2% of jury trials and 65.7% of bench trials (where a judge decides the case).[5]  The report noted that bench trials usually involved business litigation.  Nationwide, plaintiffs won approximately 66% of contract cases, and 52% of tort cases.  Plaintiffs were most successful in litigation involving animal attacks (winning 75% of the time), followed by motor vehicle accident (64%), asbestos (55%), and intentional tort (52%) cases.  Plaintiffs had the lowest percentage of wins in medical malpractice trials (23%), products liability cases not involving asbestos (20%), and false imprisonment or imprisonment trials (16%).  The Department of Justice report is an interesting read for lawyers and non-lawyers alike, and can viewed at:   http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf.

Any good lawyer would agree that statistics are only one aspect of whether or not someone should file a lawsuit or take a case to trial.  Statistics are no substitute for knowing a case inside and out, and knowing in your bones that your client has been “wronged,” or that your client is truly innocent.  Scholars who have researched the topic of jury verdict statistics have convincingly argued that you cannot draw concrete inferences from jury verdict statistics because there are so many competing explanations as to why a certain jury found a certain way.[6]  Moreover, depending on the type of case, jury trials usually account for only 1% to 12% of the total cases filed in court.[7]  However, as they say “statistics don’t lie,” and for this reason they can help provide an overall impression of a case, as well as a bit of the wisdom only learned once a trial is completed.


[1]               J. Clark Kelso & Kari Kelso, Jury Verdicts in Medical Malpractice Cases and the MICRA Cap (1999)

University of the Pacific McGeorge School of Law

[2]               National Association of State Jury Verdict Publishers, Trials Digest, Oakland California.

[3]               David Jung, Jury Verdicts in Wrongful Termination Cases, (October 29, 1997.) Public Law Institute, Hasting College of Law

[4]               Id.

[5]               Bureau of Justice Statistics, (October, 2008) NCJ 223851 http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf

[6]               Neil Vidmar, Making Inferences About Jury Behavior from Jury Verdict Statistics, Law and Human Behavior, (1994) Vol. 18, No. 6.

[7]               Id.

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CALGREEN v. LEED

Since its inception in 1998, the Leadership in Energy and Environmental Design system, more commonly known as LEED, has been held as the highest echelon of green building standards in the United States. For meeting any of LEED’s stringent environmental requirements in construction, a project is awarded LEED points on a 100 point scale. These points correspond to a certification hierarchy, with a “platinum” certification entitling its bearer to advertise that the building in question meets the highest possible standard of environmental awareness in construction techniques. Until recently, these green building qualifications were entirely voluntary in the state of California; no minimum environmental standards for new construction existed. Many contractors sought to achieve high levels of LEED accreditation for the positive, earth-conscious reputation that comes along with certification, but it was not legally required that new construction meet environmental standards.

However, on January 1, 2011, the 2010 California Green Building Standards Code (Part 11 of the California Code of Regulations, Title 24), also known as CALGreen, went into effect, establishing mandatory minimum standards of green building practices for most new construction in the state, along with some additional voluntary components. CALGreen is notable as the first state-wide green building code in the country, in keeping with California’s typical role as a leader in environmentalism across the nation. While CALGreen is not meant to replace LEED, its writers did take into consideration the standards addressed at the lower levels of LEED certification in an attempt to make comparable legislation. Satisfying the mandatory components of CALGreen qualifies a project for 10 LEED points, with an additional 25 to 40 points possible under the voluntary components of CALGreen.

From an environmentalist standpoint, it is hard to find theoretical fault with any law mandating green construction techniques, yet the new law remains controversial because of the implications of forcing conformity with its requirements on nearly all new buildings. Some environmental advocates argue that CALGreen does not go far enough in its requirements and that it should have been written to adhere to the higher levels of LEED-qualifications. Some critics worry that CALGreen will be seen as a replacement for LEED certification rather than a supplement, deterring the pursuit of the platinum LEED rating and allowing builders to settle for lower standards. After all, if everyone is required to comply with green building techniques, there is no longer the incentive of “bragging rights” to encourage more environmentally-friendly construction. LEED accreditation used to be a golden goal for many builders, but the new requirements may make green buildings so ubiquitous that builders will no longer be able to use their “greenness” as a subject of advertisement to appeal to environmentally-conscious consumers.  By negating this key incentive, some fear that CALGreen may do more harm to the environment than good because fewer builders will be inclined to strive for high levels of certifications.

Conversely, some contractors and builders resent being forced to follow these standards from an economic standpoint as they can prove costly and can slow the pace of construction. The main goals of CALGreen are to reduce the environmental impact of construction through minimizing waste, as well as to make new buildings more efficient in their use of energy. Accomplishing these two goals can require more expensive building strategies, such as irrigation to reduce runoff of contaminated water from the construction site and recycling of at least 50% of building materials. Furthermore, since the law is new, builders and architects are scrambling to learn what standards are included in CALGreen and what methods of construction they must follow in order to be in compliance. Additionally, some inspectors must be trained to specialize in CALGreen in order to adequately determine projects’ fulfillment of requirements, a costly and time-consuming process.

In the chart below, we have highlighted five key sections of CALGreen and LEED (Sustainable Planning and Design, Energy Efficiency and Atmosphere, Water Efficiency and Conservation, Material Conservation and Resource Efficiency, and Environmental Quality), along with some key standards addressed under each of these sections for non-residential construction. This can provide a brief, rough comparison of how LEED’s standards are similar or dissimilar to requirements established under CALGreen.

CALGreen v. LEED

 

Sustainable Planning and Design

Similarities:

  • Storm water pollution prevention (SWPP) plan that meets State National Pollution Discharge Elimination System (NPDES) requirements
  • Bicycle parking for at least 5% of projected visitors
  • Designated parking for low-emission or electric vehicles
  • Light pollution reduction

 

Dissimilarities:

  • CALGreen requires grading and paving to prevent surface water runoff into buildings; LEED has no comparable tenet
  • CALGreen requires 8% of parking be designated for low-emission or electric vehicles, while LEED requires only 5%

 

Energy Efficiency and Atmosphere

Similarities:

  • None

 

Dissimilarities:

  • CALGreen only requires that new construction meet California Energy Code (Title 24, Part 6-2008); LEED accreditation demands a 10% improvement on California Energy Code requirements

 

Water Efficiency and Conservation

Similarities:

  • Irrigation controllers that regulate the amount of water to plants depending on seasonal needs
  • Minimum 20% reduction in potable water usage within the building

 

Dissimilarities:

  • CALGreen requires separate water usage meters for subtenants projected to consume more than 100 gallons of water per day and separate meters for landscaping when it will cover more than 1000 square feet; LEED has no comparable standards
  • CALGreen requires high efficiency plumbing fixtures; LEED has no comparable standard
  • CALGreen requires a 20% reduction in generation of wastewater; LEED requires a 50% reduction

 

Material Conservation and Resource Efficiency

Similarities:

  • Recycle or reuse a minimum of 50% of nonhazardous construction and demolition debris
  • Provide areas for the storage and collection of materials for recycling by residents
  • Include green building commissioning in the design plans for a building

 

Dissimilarities:

  • CALGreen requires that the exterior of building must be protected from spray or runoff from irrigation; LEED has no comparable standard
  • CALGreen requires 100% of plants, rocks, tree stumps, and other landscaping materials be recycled; LEED has no comparable standard
  • LEED requires that commissioning agent cannot be affiliated with the designer or builder of a project; CALGreen has no comparable standard

 

Environmental Quality

Similarities:

  • Cover all air ducts during the construction process
  • Comply with VOC limits in SCAQMD Rule 1168 VOC limits and California Code of Regulations Title 17 for aerosol adhesives
  • Install only low-emitting carpeting in compliance with  Carpet and Rug Institute’s Green Label Plus Program
  • Prohibit smoking within 25 feet of buildings; require no smoking or provide designated smoking areas

 

Dissimilarities:

  • CALGreen allows the installation of only direct-vent or sealed-combustion appliances; LEED has no comparable standard
  • LEED requires that CO2 levels be constantly monitored within the building; CALGreen has no comparable standard
  • CALGreen requires ventilation systems to meet California Energy Code; LEED requires ventilation systems meet ASHRAE standard 62.1-2007, Ventilation for Acceptable Indoor Air Quality
  • CALGreen requires a Minimum Efficiency Reporting Value for air filters of 8; LEED requires a MERV of 13.
  • CALGreen requires that 50% of flooring materials meet VOC-emission limits defined in the 2009 Collaborative for High Performance Schools (CHPS) criteria or certified under the Resilient Floor Covering Institute (RFCI) FloorScore program; LEED requires this of 100% of flooring materials

 

 

For a comprehensive overview of the CALGreen legislation, view the Housing and Community Development Department’s brochure at http://water-concepts.info/newsportal/wp-content/uploads/2011/08/CALGreenGuide_COMPLETE.pdf

For a more in-depth side-by-side comparison of LEED requirements to CALGreen requirements, view the United States Green Building Counsel’s websites here:

http://www.usgbc-ncc.org/storage/usgbcnccdev/documents/advocacy/gbcec_2010_calgreen_residential_gpr_leed_comparison.pdf (for residential projects)

http://www.usgbc-ncc.org/storage/usgbcnccdev/documents/advocacy/gbcec_2010_calgreen_non_residential_leed_comparison.pdf (for non-residential projects)

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