Wednesday, December 21, 2011

How dare you "spoil" my evidence!

         Sometimes in a case evidence can “disappear” for lack of a better word. In California, this is referred to as “spoliation”, which means evidence is destroyed, altered, or not preserved for use in litigation. See Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 680. Spoliation can be unintentional or intentional. Unfortunately, when spoliation occurs, there is not much of a legal recourse available because the courts take the position that spoliation is not a viable cause of action. See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1. Alas, there may be a way to still protect your case if the evidence “disappears”. One way to protect your case is to send a “notice to preserve evidence” to the other side. The notice to preserve evidence is a request that the other side not discard of what you consider to be evidence in a case. Usually, the notice is sent before a lawsuit is filed.

            Now, let’s apply the notice to preserve in a hypothetical case where a client pedestrian was hit by a car. The driver of the car denies the accident ever took place or denies being at fault. (This is referred to as “arguing in the alternative” where the defendant somehow can deny an accident even happening but just in case the accident did happen then it was not the driver’s fault). As is my policy, I personally investigate the scene where the accident happened. I see pieces of a vehicle and tire tracks embedded in the dirt. We take photos of the debris and tire tracks. We then track down the driver and his/her vehicle. Before the lawsuit is filed we send the notice to preserve where, in the notice, we list what we ask be kept because of the pending lawsuit. If during the litigation the notice to preserve is disregarded and the evidence “disappears”, there may not be a cause of action but a trial judge can be asked to sanction the other side for failing to keep evidence after having “notice” to preserve that evidence. Sanctions can range from a simple warning to a more severe denial of a defense by the other side. The range of sanctions varies widely and usually depends on the circumstances of each case (e.g. was there a notice to preserve; who discarded the evidence; can the evidence be salvaged). The more egregious the conduct, the more severe the sanctions a court would impose.

            All in all, there may not be a cause of action to sue for spoliation of evidence, but the court can fashion a remedy powerful enough to affect the outcome of the case. When confronted with a case where evidence may disappear, intentionally or unintentionally, consider sending out a notice to preserve.

Thursday, December 8, 2011

Is anyone else listening in on this conversation?

California is very protective of the rights of its citizens. One is a right to privacy when speaking on the phone; however, like many laws, there are exceptions so do not assume all calls are confidential. This brief article will not address any of the exceptions which would allow someone to record or listen in on your call. Rather, this article will focus in on when a person makes a call to a business and the right the caller may have that the call is not listened in on or recorded. 

Generally, California Penal Code 632 prohibits the recording or eavesdropping of confidential communications without the consent of all parties. A case recently decided by the California Appellate Court involved a customer who called a business and spoke with the company representative.SeeAmanda Kight v. Cashcall, Inc. It is an interesting case because it affects almost anyone who has called a company and spoken with a representative. While on the phone the caller claimed not to be aware the call was either being listened in or recorded by a company supervisor. The customer later found out the call was recorded or listened in on and believed his/her right to privacy was violated. A lawsuit followed. Two interesting topics were raised by the Court that may be of interest to people making calls to companies and to companies with this practice.

First, the Appellate Court addressed the question of who is a "party". The business claimed there was no eavesdropping by a third party. i.e. the supervisor, because the supervisor and company representative both worked for the company. Therefore, the call was listened in by one party, the company. Interesting argument except the Appellate Court disagreed and opined that a person under the statute included both a person and corporation. Next, the Appellate Court also found no explicit exception that allowed a company to monitor phone calls, even if for a legitimate business purpose, which brings us to the second issue.

In the second issue the company argued the caller could not have expected the conversation to be confidential because the company discloses the call may be monitored or recorded. This disclosure is very typical of what a lot of us hear when we call almost any form of business. But, even with the purported disclosure, the Appellate Court held that the disclosure was not adequate “as a matter of law”, a term of art. According to the Appellate Court, the company had the burden to prove they did all they could to make it clear the calls were being recorded or monitored. The company, however, according to the Appellate Court, did not meet its burden “as a matter of law” because (1) the company could not prove that all calls made to and from the company gave a disclosure; (2) the specific disclosure used by the company suggested that only the current call was being monitored or recorded and not any future calls or even transferred calls; and (3), it was possible for a caller to avoid hearing a disclosure at all by pressing “0” to get an operator.

To sum it up, if callers expect their calls to be confidential they should make sure they know who or what is listening or recording their calls. For companies, make sure all calls to and from your business to customers give an adequate disclosure and try to prevent customers from bypassing the disclosure when the customer calls your company and searches for that all too common “press zero for the operator” option.

Additional Resources

Attorney Angelo F. Campano; Tel: 661-945-5300

Monday, May 30, 2011

Do's and Dont's for California Pregnancy Disability Leave (PDL)

General Rule: California Pregancy Disability Leave (PDL) applies to a business with 5 or more employees and gives an employee a right to four (4) months of unpaid pregancy leave.

If facing a possible Pregnancy Disability Leave, both employers and employees should keep in mind the following do's and dont's for PDL:

  1. Pregnancy Disability Leave DOES NOT have to be continuous. (An employee can break the 4 months up but not use more than 4 months).
  2. An employer DOES NOT have to give health insurance benefits (unless employer already does or some other law applies);
  3. An employer CAN require employee to use accrued sick leave;
  4. An Employee CAN use accrued sick leave, vacation leave, or other credits during the unpaid PDL; BUT employer CANNOT require employee use vacation or other credits during unpaid leave;
  5. An Employee DOES NOT have to work any period of time to be eligible for PDL (an employee can work 1 hour on a new job and give the employer notice);
  6. An Employee CAN be part time or full time and be entitled to PDL;
  7. An Employee MUST be actually disabled by pregnancy, childbirth or related medical condition;
  8. An Employee MUST have medical provider certify the PDL disability; 
  9. An Employer MUST provide reasonable accommodation when requested with advice of employee's medical provider;
  10.   An Employee MUST be unable to perform one or more essential functions of her job without undue risk to herself or other persons.
  11.   An Employee HAS TO give employer at least 30 days notice before disability/transfer begins unless not possible for several reasons. Then, notice should be given as soon as practicable and should provide estimated dates of leave;  
  12.   If employee wants to return earlier than thought (before 4 months runs out), employer MUST reinstate employee with 2 business days of her notice;
  13.   An Employee who returns within 4 month period is GUARANTEED right to return to same position;
  14.   An Employer CAN reinstate employee to comparable position if same position no is longer available due to reasons other than pregnancy. If so, employer should offer comparable job in terms of pay, location, job content, and promotional opportunities;
  15.   An Employer CANNOT refuse to provide original position even if temp employee is better or even if employer found problems with performance that existed prior to her leaving.

Additional Resources

For further information, visit the California Department of Fair Employment & Housing at www.dfeh.ca.gov. Or, contact Campano Law Group at www.campanolaw.com or at 661-945-5300.

Monday, May 9, 2011

An employer cannot discriminate against you because of your disability

California Fair Employment & Housing Department (DFEH) prohibits an employer from discriminating against an employee if the employee has a disability. This brief guide will explain what you need to show that your employer has discriminated against you becaue of a disability.
 

1st: Does the employee have a disability?

The general rule of law is that a person is physically disabled under FEHA when he or she has a condition that affects a body system and that condition limits a major life activity. See California Govt. Code 12926 (k)(1)(A)(B). A "body system" includes neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. "Major life activities" include caring for one’s self, performing manual tasks, speaking, breathing, seeing, walking, hearing, learning and working.

2nd: Could you perform the essential functions of the job?

If you have a condition and it affects a major life activity, does that prevent you from performing the essential functions of the job? Keep in mind that you have to be qualified to have performed the job to begin with. If you were not qualified for the positon, your employer is not necessarily breaking the law if you have a physical disability and are denied the job. If you are asking your employer to be reassigned to a position because of a disabilty, you, the employee, have the burden to prove you were qualfiied for that reassignment. Otherwise, if you were not qualified, a court may find the employer did not discriminate against you.

3rd: Were you discriminated against because of your disability?

Last, but not least, can you, the employee, show that you were discriminated against because you have a disability. Generally, the closer in time between when your employer learns of your disability and any action taken against you will help you prove you were discriminated against because of your disability. For example: On monday your employer learns that you have a physical disability. On Tuesday, you were fired without reason. That short time between the two events helps establish you were discriminated against because of your disability.

4th: Does your employer have a defense, a valid reason for not giving you the job?

Even if you can satisfy the elements of disability discrimination it does not mean your employer is automatically at fault for discriminating against you. Your employer is allowed to present a defense to why they did what they did and still not be held to have discriminated against you. One defense an employer has is that an employer is not required to create new position or bump other employees to accommodate the disabled employee. See Rory Cuiellette v. City of Los Angeles 2011 DJDAR 5687 citing Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; citing Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.

Additional Resources

If you feel you have been discriminated against at work because of a disabilty, you should either contact an employment lawyer such as the Campano Law Group. Or, go to the California Department of Fair Employment and Housing (www.dfeh.ca.gov) where you will find more information on the law.

Tuesday, April 12, 2011

“SLAPP” back, with the court’s permission of course.

Most lawsuits are filed against people who did something wrong. Some lawsuits, however, are filed to stop people from speaking out on a subject important to the public. When these types of lawsuits are filed, they are known as "strategic lawsuits against public participation", i.e. lawsuits filed to keep people quiet. "A 'SLAPP' suit is 'a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights". (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.) If you have been sued and believe you are sued to keep you from speaking out on behalf of the public, the law can be on your side. One option a defendant has when sued is responding to the lawsuit with a Special Motion to Strike, or what some refer to as an "Anti-Slapp" Motion. In California, the code section often referred/cited to is CCP Section 425.16. Although you were sued and alleged to have done something wrong, your "Anti-Slapp" motion requests that the court dismiss the lawsuit filed against you because what you said or did and the reasons why you were sued are protected rights under the law. If you are right, and the court agrees, then the court is required to dismiss the lawsuit, or part of it, and even award you your attorneys' fees. If you are wrong, the lawsuit goes forward, and the court has discretion on awarding attorneys' fees to the other side.

Friday, April 1, 2011

Before you send that email from work...

Before you click on send and let that email go out into the internet, be advised that a recent California Appeals Court has ruled that emails sent from work to an attorney are not privileged, and can be used in court. In Holmes v. Petrovich Development, an employee used his work email to send emails to his attorney. The employee sued his employer. The employer wanted to use the employee's emails to his attorney as evidence in the lawsuit. The employee fought and tried to keep the emails out of court, but the Appeals Court ruled that the email was not privileged and can be used as evidence because the email was sent at work using work provided email. So, before you click on send, make sure you are sending it from a private email address. Otherwise, what you send to your attorney may not be privileged and confidential and end up being used in court.

Monday, March 28, 2011

Denied a job because of your past? Get a summary of your criminal history.

Henry Ford once said "we look at the person, not their past". Recently, however, I read that many people, in this down economy, are not getting jobs because of a misdemeanor that happened to them in the past. What some employers may not know is that there are limits to what misdemeanors an employer can ask about and what have to be disclosed by someone looking for work. Many people looking for work, however, may not know what is in their criminal history before they even apply for a job or may think it happened so long ago. To find out what your criminal consists of, or doesn't consist of, a person can get their own criminal history summary by simply filling out a short form and mailing it to the California Department of Justice. The form is called "APPLICATION TO OBTAIN COPY OF STATE SUMMARY CRIMINAL HISTORY RECORD". The form number is BCII 8705. Click on the following link to take you directly to the form and the instructions. http://ag.ca.gov/fingerprints/forms/BCII_8705.pdf

Inaugural test

Campano law group is located at 528 West Milling Street, Lancaster, California 93534; tel; 661-945-5300