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Business Law

June 15th The End of a Masquerade: What Does it Mean to You?

News & Analysis
Latest legal news and recent law changes.

June 15th The End of a Masquerade: What Does it Mean to You?

Contact UsRecently the California state government announced that it would be lifting mask mandates at a statewide level. The California Department of Public Health seeks to bring California in line with the CDC’s recent recommendations of allowing those who are vaccinated to forgo their masks in most settings.

The issued a release clarifies that though the requirement for masks will be relaxes, masks will still be required, regardless of vaccination status for those who are:

  • On public transit;
  • Indoors in K-12 schools and childcare;
  • Healthcare settings;
  • State and local correctional facilities and detention centers; and
  • Homeless shelters, emergency shelters, and cooling centers.

Cal/OSHA has considered issuing guidelines that will still require all employees in a workplace to wear masks unless everyone in a given room is fully vaccinated; however, that proposal has so far been withdrawn, but could potentially be revived. Of note, Cal/OSHA is an independent board in the state government, and while Governor Newsom does have the ability to step in and change those regulations, he has indicated in a recent press conference that he is not likely to do so.

The state has still not issued any capacity guidelines that would restrict large gatherings as of June 10th, thus it is expected that normal group activities shall continue without restrictions.

To date, Governor Newsom maintains his emergency powers as the COVID-19 virus is still present. As such, he maintains his authority to reimpose mandates if they become necessary as the situation continues to develop (e.g. the various international variants, which so far the vaccine is effective against).

For More information on how this may affect you CLICK HERE or call Burton Law Firm (916) 822-8700.

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Business Law

It Pays to be Nice: What Karton v. Ari Design & Construction, Inc. Means for Collecting Attorney’s Fees

News & Analysis
Latest legal news and recent law changes.

It Pays to be Nice: What Karton v. Ari Design & Construction, Inc. Means for Collecting Attorney’s Fees

On March 9, 2021, the Court of Appeal of California, Second Appellate District, issued a ruling in Karton v. Ari Design & Construction, Inc.  on a trial court’s judgment awarding attorney’s fees under Code Civ. Proc., §§ 1032(b) and 1033.5(a)(10), to homeowners who won a judgment against an unlicensed contractor.

Starting in 2015, litigating the case took over five years. The amount under controversy was only $22,096; however, the Plaintiffs won a judgment for $133,792.11 (six times the amount in controversy), plus post-judgment interest.  The Plaintiffs thereafter sought attorney’s fees of $271,530, which with interest equated to $292,140.

After the smoke settled, the trial court awarded only $90,000 in attorney fees (a $200k+ loss of fees).

There are two ways to calculate Attorney’s fees: (i) the Lodestar method, which is, roughly, the reasonable hourly rate multiplied by a reasonable number of hours; or (ii) the percentage-of-recovery approach. It is at the discretion of the trial court which approach to choose, and here they used the Lodestar method (likely due to the embedded allowance to reduce the fees as they see fit).

The trial court had determined that Plaintiffs’ counsel’s $450 an hour rate was reasonable; however, it still denied their overall request for attorney’s fees due to Plaintiffs’ counsel’s lack of civility and inability to justify their work. For example, the Court specifically drew attention to the Plaintiffs’ filed briefings “replete with attacks on defense counsel such as that defense counsel filed ‘knowingly false claims of witness tampering,’ ‘her comments were frivolous,’ something was ‘typical of the improper tactics employed by defendants and their counsel’”, and generally how “offensive” their arguments were. The Court drew attention to how the Plaintiffs had filed “300 pages of documents” and had spent an amount of time on the case which was “so far beyond what was necessary on this matter.”

Through the Court of Appeals does discuss the simplicity of the matter and other factors under review, its Opinion consistently highlights and makes it known the most important factor was how Counsel for plaintiff took this matter personally:

“[C]ivility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.” …. “In short, in this appeal the [Plaintiffs] have come out swinging, apparently believing the best defense is a good offense. This approach demonstrates the trial court was within its discretion to conclude the [Plaintiff] conducted litigation that was less than civil.

The Court of Appeals concluded that this, and the other factors, were a sound basis for reducing the requested attorney’s fees from about $300,000 to $90,000.

What does this mean? Any seasoned litigator knows that clients are personally invested in their cases and sometimes want their attorneys to likewise be as passionate as they are, and even to cause pain to the other side. It is a tactic many lawyers feel they have to engage in, or perhaps subconsciously lean toward to meet client’s expectations, despite the fact that Rules 3.1 and 3.2 of the California Rules of Professional Conduct specifically disapprove of this behavior.

Nevertheless, going forward, attorneys need to be aware that such aggravated actions and use of hyperbole will continually and increasingly be scrutinized by the Courts, and may hit them where it hurts: their wallets. As advocates, our job is to be adversarial; however, unless we can do so professionally and courteously, financial compensation may be targeted.

Call 916-822-8700 for more information. You can read the full case here at: https://law.justia.com/cases/california/court-of-appeal/2021/b298003.html

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Business Law COVID

SB-95 Employment: COVID-19: Supplemental Paid Sick Leave Passed

News & Analysis
Latest legal news and recent law changes.

SB-95 Employment: COVID-19: Supplemental Paid Sick Leave Passed

On March 19th, Governor Newsom approved SB-95, the Supplemental Paid Sick Leave law, which requires firms with twenty-five (25) or more employees to provide supplemental paid sick leave to said employees who are unable to work or telework due to COVID-19 (aka the “covered employees”). Their sick leave shall be paid at the highest of the covered employee’s regular rate of pay, the state minimum wage, or the local minimum wage to which the covered employee is entitled.  The bill entitles full time employees up to eighty (80) hours of supplemental paid sick leave, that the number is reduced for part-time workers.

The employees new Supplemental Paid Sick Leave takes priority in calculating an employee’s already existing and available leave, because “[a]n employer shall not require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer . . . in lieu of COVID-19 supplemental paid sick leave.”

Section 248.2(b) of Labor Code broadly extends the scope of this supplemental paid sick leave to:

  • employees subject to quarantine or isolation;
  • employees advised by a local health officer to self-quarantine;
  • employees seeking a vaccination;
  • employees experiencing symptoms related to the COVID-19 vaccine;
  • employees experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • employees caring for a family member who is subject to a quarantine or isolation period or who has been advised to self-quarantine; and/or
  • employees caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

One concern is that the new law could provide employees with a way to work the system, in that it appears to allow eligibility for paid sick leave if “the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” That leaves the door open to interpretation and abuse.  However, this is nothing new for employers; and the new law will hopefully assist to end the pandemic as soon as possible.

For more information, please contact our firm at 916.822.8700 or info@lawburton.com. Or, see the full text of the law at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB95.