DJO LAW BLOG : Legal Newsletter

This blog post addresses some psychological attitudes that will get you into even deeper trouble, when you are already in legal trouble. 

“I’D RATHER PAY YOU (MY ATTORNEY) THAN THEM (BASTARD SUING YOU)” 

Imagine this: you get sued. You cannot fathom how the lawsuit was allowed by the court. Your attitude is: I’d rather pay an attorney than cave into a ridiculous settlement demand. 

This is a natural reaction that many of my clients have when they are sued. The cases vary greatly, but they share a common feature: someone my client interacted with (business partner, housemate, neighbor, employee, contractor, or friend) files a lawsuit that makes outrageous, baseless allegations of wrongdoing. The claims may be false, but that does not mean the case will go away easily. There is often a tiny legal hook that the other side’s attorney thinks is enough to hang a case on. Add in this fact: your enemy is lying to his or her attorney, and, of course, the attorney believes their client.  

 An unscrupulous attorney loves to hear the phrase “I’d rather pay you, than them.” Why? Because the attorney will not try to settle the case. Instead they will do everything they can to run up your bill.

Here’s an example: Small business owner sued by a former employee for race discrimination and wrongful termination. Now, I am often on the employee-side, but I knew the business owner, and knew the case stank. My client initially did not want to “pay a dime” in settlement: she’d rather pay me than the lying former employee.

Of course, my client had to pay me (someone being sued always has to pay), but eventually, and as quickly as possible, I convinced my client to settle the case, and convinced the other side’s attorney that his client had very weak, if any, legitimate claims. Sure, my side would have, almost certainly, won at trial, but the more rational course of action for my client was to cut small check to the other side, a small check to me, and get back to focusing on her business.

It was the difference between a total of 5k in getting rid of the case quick in settlement versus a 50k+ expenditure to win a trial in front of a jury.

Point is: if you are sued, treat it as a practical, monetary problem to solve, not a life or death forum for ultimate vindication. (For business owners, treat paying a settlement as a cost of doing business, literally.)

That said, sometimes when you are sued, it does make sense to pay your attorney to fight the lawsuit at length instead of going for a “quick settlement.” Factors include: (1) when all or most of the facts are very clearly on your side (i.e. you have great documentary evidence and witnesses), and (2) when you have sufficient funds so that litigation will not be a hardship.

One problem for my small business owner client was that she had no documentary evidence to support her justified firing – no performance review, etc.: it was a word-against-word case. (That counts as a legal hook.) But, thankfully, I was able to show through informal exchange of information with the other side’s attorney that my client had an (almost) iron-clad defense.  

Of course, if you are sued, a quick, cheap settlement is not always possible. But a good attorney will always try.

“I DON’T CARE HOW MUCH IT COSTS”

“I Don’t Care How Much It Costs” is a corollary to “I’d Rather Pay You Than Them,” but this attitude arises when you are the one who suffered an injury of some kind AND an attorney tells you that they will only take the case “by the hour.”

A good rule-of-thumb is: you should not pay an attorney by the hour if you are the aggrieved party planning to sue somebody. An honest attorney that sees a good case with monetary value will take the case on contingency (i.e. attorney gets paid out of a settlement fund or verdict).

There are many exceptions to this rule-of-thumb: family law, multi-million dollar contract disputes, Hollywood defamation cases, and others. But if you are the person who was harmed, you need to objectively evaluate what the realistic payout is likely be at the end of the case – and figure out if you’ll wind up paying more by the hour to your attorney than you’ll ever see, even if you win.

It makes sense to spend 50k+ on a claim worth 200k. But it does not make sense to pay 60k to an attorney on a 20k claim. So, if an attorney tells you that they will only take your case by the hour, think again. And shop around more for an attorney – if your claim is truly worth a substantial amount of money, an honest attorney will take the case on contingency (in many situations).

If your case is a low value case and you find yourself saying “I don’t care how much it costs,” you are likely seeking revenge, not legal justice. My advice is: take a long walk on the beach (or mountains) and put things in perspective.

Point is: if you have grounds to sue, evaluate the situation with a cost/benefit analysis; don’t treat the courts as a forum for revenge. That just wastes your time, money, and, possibly, your emotional well-being.  

“YEAH, BUT HOW CAN THEY PROVE IT?”

I hate hearing “Yeah, But How Can They Prove It?” and any version of that phrase, for example:  

“They’ll never find out”

“I never wrote it down”

“I just said it on the phone; they can’t introduce the tape can they?”

“I don’t want to talk about that; can’t we leave that out?”

Why does an honest attorney hate hearing such things? It means the client is lying. When a client says something that indicates they are lying or willing to lie, the client does not understand a few things about the way the law works: (1) there are many ways for the other side to find out you are lying [see my blog on Discovery]; (2) if the case goes to a jury, the jury may “sense” you are lying, just as an good scam-sniffer will. And, (3), an honest attorney builds the best case they can with the truth; that gives the best chance of winning.  

Credibility is huge in front of a jury, and also in preliminary matters heard by a judge. If you are caught in that one lie you think you’ll get away with, you could sink your whole case.

For example, suppose a personal injury case with this attorney-client exchange:

“Hey, just want to let you know I’ve reduced my work hours even more. It’s my neck. Still hurts. Getting worse.”  

 “Okay,” attorney says, “I will re-calculate the wage loss claim, how many hours a week are you working now?”

 “The real truth is that I just got a big inheritance, so I don’t need to work as much, but I’ll say it’s because of my neck.”

It’s nice, in this hypothetical, that the client was honest with their attorney. Quite touching. But a plaintiff needs to be honest not only with their attorney – they need to be honest to the jury!! And needs to be honest in discovery responses.

 A lie is easily discoverable in legal process – formal discovery, subpoenas, private investigation techniques, witnesses who testify to the opposite, others who you think will lie for you change their mind, the jury’s street smarts.

 So, be honest. It’s good for the case, and good for the soul.

 Here’s a story of honesty from one of my first eviction defense cases: a woman was being evicted because the police arrested her for methamphetamine possession in her apartment; landlord used illegal activity as just cause to evict. My defense was based on what actually happened: the police followed my client’s meth-dealing daughter to her mother’s house (she did not even live there), and when the police banged on the door, the daughter dumped the drugs in her mother’s purse. That was the truth, but somewhat hard to prove.

 One problem was that my client – like her daughter – had a long history of meth use, though her last arrest was relatively long ago. I prepared my client for the stand: be honest, but emphasize that you are clean now, etc. The jury believed my client, in part because of her unplanned, honest, statement during questioning: “Well, the apple doesn’t fall far from the tree.” My heart sank when she said that (I was trying to show she was not like her meth-head kid), but her honesty won the day.

Point is: don’t lie. 

(O.J. did not testify at his criminal trial, and won; but he did testify at his civil trial, and lost. Maybe he should have settled before trial.)  

“THE JURY WILL BELIEVE ME!”

If I had a dollar for every time I heard a client say “The Jury Will Believe Me!” I could buy a very expensive set of legal practice guides!

It is hard for an attorney to tell a client that the jury may NOT believe them, even knowing that the client is telling the truth. Some clients get mad. But the truth is that we do not know who the jury will believe.

Sure, your attorney will do everything possible to get a fair, impartial jury of your peers, but that may not happen. The jury may be prejudiced in some way against you – racist, sexist, homophobic. Add in this reality: a legal dispute that goes to trial inevitably has good and bad facts on both sides. One – and only one – part of the evidence is what testimony you will present, and what testimony the other party will give.  

It is easy to understand the problem with the attitude of “The Jury Will Believe Me” if you think of all the innocent people on death row. In a civil case, only money is at stake, but do you really want to risk substantial sums of cash with the bravado mindset that “the jury will believe me”?

Point is: the jury may or may not believe you, and many factors go into a jury’s decision.

“I JUST HAVE ONE QUESTION”

I will end this blog with a point about a bad attitude to have in the beginning, before you take any action that has legal consequences.  

If you have a legal problem or are facing a legal issue in some way, you should seek out legal advice. But, please don’t say “I Just Have One Question” to an attorney, because you most likely do not know what questions to ask. Back up.

Get a no-cost telephone consult, or pay a reasonable price for a sit-down consult, and tell the attorney the whole situation you are in (and be honest). Let the attorney ask you the questions. Let the attorney evaluate your situation, obtain all the facts,  spot related issues, dig into all aspects of your predicament and ask about your long-term goals, and then give you initial advice. (Of course, you should ask any questions you have along the way.) A good attorney will set you on the path to handling the situation yourself, if that is possible, or explain what kind of legal services you need.

This blog post talks about attitudes. I am not a psychologist, but as an attorney I have seen how these attitudes can get in the way of a client’s clear thinking about his or her own case. In sum, find a good, honest attorney, and let him or her achieve your goals as quickly and fruitfully as possible. Don’t let bad attitudes get in the way.  

DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation; the information provided is for educational and informational purposes only. It is intended for California only.

You probably know that if you were to be arrested for a crime, the police are supposed to inform you that you have the “right to remain silent” and that “anything you say can and will be used against you in a court of law.” Unfortunately, no one is reminding you of your right to “shut up” before you dash off an ill-planned email. This blog post is designed to give you some practical tips in light of the pervasive use of emails as evidence in civil disputes and trials. 

My job as an attorney is not only to know the law; it is to investigate the facts of the case, analyze those facts, and shape them into a story that puts you – the client – in the best possible light with the “facts on your side.” These days, almost every case I have involves numerous emails between the parties or others involved, dozens of emails, sometimes hundreds. Emails are used to prove a variety of things: notice, knowledge, intent, what really happened, and also the character of the sender (think: drunken, curse-laden email). The emails you send will become an essential part of your side of the story. The common sense rule is: think before you send. But here are some specific tips that will give you concrete steps to take to protect your interests:  

·         Never write and send an email in one fell swoop; draft your email in a Word (or other) document; review it; proofread it; edit it (take out the “fuck you”); then cut/paste it into an email (or use the “draft” function in your email program)

·         For any given situation, create one document and draft all your emails on the issue there (e.g., Landlord Problems); this will save you time and keep your file organized

·         Never use Siri (or other voice recognition program) without reviewing and editing; the fact is, voice recognition programs produce much gibberish at best, and, worst case scenario, say something you did not say – which you will then need to convince a jury you did not say

·         Use “reply all” when appropriate; if there are multiple people involved in an email string on a certain topic, it is usually best to include “all” – don’t break off into separate strings and try to go around someone’s back; you may not know who your friends are, and your enemies will certainly use the “forward” function; in general, think about who to include or not include in an email

·         Emails are “discoverable” in a civil lawsuit; thus, always be polite and professional; slang, cursing, and other inappropriate language will affect how a jury sees you just as much as if you were wearing a tank top in the witness box [if you are unfamiliar with “discovery” see my blog on the topic]

·         Use a consistent “subject” line for any ongoing relationship or issue; for example, if you live at 888 Eighth Street, anytime you email your landlord the subject line could be “888 Eighth Street” – then add an appropriate sub-topic such as “toilet leak”; this will make finding emails easier should you become involved in litigation

·         Never delete emails on important topics; create a separate electronic folder and/or print the email and save in a binder for future use

·         Consider showing your draft email to a friend or attorney for an outside perspective on what you wrote

·         Admit nothing; all too often I see people having made unnecessary admissions in an email (e.g. landlord complains about a loud, late night party, and tenant reply email says “get off my back, scum, I only had 8 people over and they were gone by 11pm” - that’s an unnecessary admission! and violates the ‘keep it polite’ rule) 

We live in a fast-paced world in life and business, but, in most instances, I bet there will be time for you to think before you send. 

Questions to ask yourself: 

Should you write an old-fashioned letter and mail it (with USPS tracking, of course)? Should you respond with a telephone call instead of an email? 

Can your reply wait until tomorrow? Can it wait an hour while you draft an appropriate email that fully protects your interests? 

Do you need to reply at all? What are the legal and practical implications of what you are planning to say in your email, or of not replying? (In the above example about the landlord complaint about a loud party, the tenant should have considered not replying at all.)

Always remember: emails can form written contracts and create other legal obligations or liabilities, so ask yourself: what am I getting into? Do I know the legal implications of what I’m thinking of saying in this email? Should I consult an attorney? 

There is one problem with my tips: I may sound paranoid. But civil disputes can arise, seemingly, out of nowhere, and long after you sent a hasty email (that is now being used against you). So, short of “always,” when should you be so careful as to use my tips? Dealing with your landlord. Dealing with housemates. Dealing with your employer or employee or co-workers. Dealing with friends, family, or acquaintances in any sort of business deal. 

To drive my point home: here are a few examples of cases I have handled where emails have played a major role: 

·         Property dispute between (former) friends: did emails form a written contract for the sale of land or not?

·         Civil fraud case: emails between co-defendants that showed possible conspiracy

·         Eviction defense: numerous polite and well-organized emails from tenant telling landlord of needed repairs that showed the landlord was on notice of needed repairs

·         Housing matter: tenant made unnecessary admissions in an email to his landlord that hurt his case

·         Neighborhood dispute: hired for legal consult, including to review draft email to opposing party and revise as needed 

A word about work emails: it is perfectly legal for your employer to read any email you send from a work computer; and, trust me, your employer is reading your mail. Thus, do not use a computer provided by your employer for private messages. 

A few words about texting, FB and other social media: do not text about anything legally important. Period. Use email or old-school mail. If U stex it mighso undike dhis. In addition, texts are harder to file, print and organize than email, and by nature lead to truncated rather than thoughtful correspondences. The same is true for using Facebook, Twitter and the like – both messaging and posting. Don’t post about a legal problem you are facing; you might unwittingly make damaging admissions.

In sum, whenever you are on the verge of writing an email (or other message), STOP! – remember your right to remain silent – and invoke it: think before you send. 

DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation; the information provided is for educational and informational purposes only. It is intended for California only.

This blog post is about an interesting case (not mine) in the arena of Landlord-Tenant law and Negligence that went to trial. It’s an instructional case on trial strategy and the technicalities of evidence rules: tenant sued landlord for negligence for failing to maintain the property, alleging that water from a roof leak accumulated on the tenant’s kitchen floor. The tenant alleged that she slipped on the water puddle, fell and fractured her wrist. 

The tenant’s attorney’s plan: portray the landlord as a slumlord, and present evidence of many other needed repairs that had been neglected in the building. Sounds like a good plan. 

Problem: two days before trial the landlord admitted negligence in failing to repair the roof (a good legal move from the landlord’s side), so the only relevant evidence would be on the cause of the tenant’s injury (did the tenant injure her wrist in a fall or some other way?) and the extent of the injury. The judge ruled that the tenant’s attorney could not introduce information on bad building maintenance (including the leaky roof) or the landlord’s character. 

So, what does the tenant’s attorney do? Present the excluded evidence anyway! 

“Pacing the courtroom, pointing fingers, and puffing out his chest, [the tenant’s attorney] informed the jurors that there was much evidence he had been prohibited from telling them, like other repairs that had gone neglected at the building and how long [the landlord] had waited before admitting responsibility [for the leaking roof].” The tenant’s attorney also withheld PowerPoint slides from the judge and sneakily showed them to the jury. And, something every attorney would like to do: shout “go fuck yourself” to opposing counsel in open court. 

The result? The jury awarded the tenant $430,000.00!! But the judge vacated the verdict and ordered a new trial due to the tenant’s attorney’s inappropriate and prejudicial conduct. 

Lesson: find an attorney who works within the rules of evidence to present the best case possible, and doesn’t use obscenities (out loud). 

DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation.

If you are a renter in San Francisco, you may have received – or should receive – a Notice from your landlord pursuant to a new San Francisco Health Code regarding tobacco smoke. The new code requires landlords to designate units as “smoking optional” or “smoke free,” and give notice to existing tenants that they may elect one or the other designation. 

Specifically, San Francisco Health Code Article 19M states: 

If the existing residential rental unit does not have a current lease designating the unit as smoke free, then the owner's designation must be smoking optional.

Tenants in a unit with a smoking optional designation, may request that the property owner designate the unit as smoke free.

Landlords must also provide rental applicants with a list of which units in the building are smoking optional and make that list available to current residents as well.  

For current tenants, what this choice means is that if you opt to make your unit “smoke free,” then a non-smoking provision becomes part of your lease (just like a no-pets provision or a no-sublet provision). 

Often, a letter from your landlord takes this or a similar form:  “Pursuant to your lease agreement, you as the tenant are allowed to smoke tobacco. You have the option to designate your apartment as non-smoking under San Francisco Health Code, Article 19M. If you do not smoke tobacco within your apartment and would like to designate your apartment as non-smoking, please notify the landlord within 30 days of the date of this Notice.” 

If you are a non-smoker, do not assume that you should sign and return this document to make your unit smoke-free. I say you should not limit your tenancy in any way - e.g. by agreeing to make it smoke-free. That would (1) give the landlord one more possible basis to evict you (by claiming, true or false, that you violated the agreement), and (2) simply limit your freedom, and that is not a good thing. In addition, by not signing you obtain some possible legal leverage for use in future disputes with your landlord because you are asserting your rights as a tenant. 

Making your unit non-smoking by the terms of the lease also gives room for disputes between you and your neighbors. For example, suppose you have a zealous anti-smoking advocate as a neighbor and then you or one of your guests breaches the non-smoking rule (by cigarette or otherwise): that could give cause for the neighbor to make a stink. And, again, create some plausible basis for your landlord to try to evict you.

If you are a renter, your rental unit is your home. If you don't want people to smoke in it, you can set that rule. There is no reason to add a non-smoking a provision to your lease, and many reasons not to do so (as noted above). A lease is a binding contract between you and the landlord – why give the landlord any more power over you than absolutely necessary? 

Maybe your old pipe-smoking grandfather comes over for a visit. Do you want to deny him one of his last pleasures? Maybe you’re have a one-night stand. Do you want to say – or would you even remember to say – this is a “non-smoking” apartment? Maybe you might even feel like having a smoke yourself. Will a neighbor mistake your medical marijuana for a cigar? You get the point: there are untold possibilities where you may want to allow a puff or two in your home.  Don’t give the landlord – or neighbors – another way to try to kick you out of your own home.

Now for general principles. When the question is “to sign or not to sign?” the answer is: do NOT sign until you have considered all the legal and practical implications of the document. Consult an attorney experienced in the relevant field of law before your signature becomes your regret. 

In the arena of landlord/tenant law in San Francisco, there are many other “forms,” “notices”  “requests for information,” “questionnaires,” or “declarations” that tenants may receive from their landlord. You should consider very carefully the question of whether or not to sign.

Hey Landlord, put that in your pipe, and smoke it!

DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation; the information provided is for educational and informational purposes only. It is intended for California only.

Friend says, “Hey, can I borrow $20,000.00? I’ll pay you back in one year with 20% interest.” What you SHOULD say is: “No way!” Unfortunately, I have been consulted many times by a lender whose response was “Yes.” The stories are generally similar. The initial pitch is accompanied by some plausible reason why the money is needed, and why the borrower is sure they can pay it back. And the lender is thinking “20% interest is very good…credit card companies do it, so can I.” 

That is the lender’s first mistake. California law limits the amount of interest that can be made by a private person to 10% simple interest per year. (Cal. Const. art. XV § 1(1)). Banks and other financial institutions are exempt from this anti-usury law. Specifically, in California, the interest rate on a loan by a non-exempt lender “for use primarily for personal, family or household purposes” may not exceed 10% simple interest per year. And for any loan not for use primarily for personal, family or household purposes, the interest rate may not exceed the higher of 10% interest or 5% over the discount charged by the Federal Reserve Bank to member banks, which is currently .75%, making that figure 5.75% – so once again the highest interest rate an individual, private person, like you, can charge is 10%. 

There are other similarities to the stories I’ve heard in consults, and the cases I’ve taken on. The “friend” could be someone you would never imagine would stiff you: a “real” friend, a neighbor, a current romantic partner, or a co-worker, or trusted friend of a friend. The amount of the loan is usually between $20 – 30,000.00, and the interest rate offered is very appealing (20%, 30%... I’ve even seen 35%), and the turn-around time is supposed to be fast, 6 months, a year. And then there is this similarity: the borrowing scoundrel never pays back, stops returning your calls, or employs excuses and delaying tactics, maybe paying $100.00 here or there, or promising a “big chunk” next month. (I have done legal consults for lenders who were strung along by a one-time friend for so long that the Statute of Limitations ran out.) 

We’ve already seen the first mistake: you cannot charge more than 10% interest!! On top of that, even if you sue the borrower for breach of contract, in California you can only recover the principal, not the illegal interest, and may be subject to the scammer making a counter-claim against you for usury. (In some states, the lender cannot even collect the principal.) 

The second mistake is making the loan at all, even if you were to keep the interest rate at the legal maximum of 10%. Why? Because bringing legal action against a borrower who is not paying on the loan is itself an expensive endeavor that may end up costing you the same amount of money in attorney fees and court costs as the loan itself. I believe these unscrupulous borrowers know that trade-off, and pick loan amounts in that $20-30,000 range exactly for that reason. (If the loan is for $10,000.00 or less, you can sue in Small Claims court at minimal expense, and I’ve done those legal consults, too; see my previous blog entitled “Small Claims Court May Have Big Rewards.”)  

In sum, before you make a loan, consider the risk carefully, and keep the interest rate legal… assuming you’ve got enough to lend in the first place!   

To someone not very familiar with the law – who has never been sued or had to sue someone else – the process known as “civil discovery” can be one of the most surprising parts of a case.  Civil discovery is used by each party in a lawsuit to obtain facts, documents and other types of evidence from the other side.  This blog post gives you a brief overview of the process of civil discovery. 

There are several different kinds of civil discovery. The one most people probably know from TV is the Deposition. Suppose you are a plaintiff-employee in a discrimination case. The employer’s attorney would have a chance to “depose” you in a deposition: you meet in a conference room and the employer’s attorney asks you questions. Likewise, your attorney can depose members of the employer’s management team. A deposition is sworn testimony just as if you were in court and is recorded by a stenographer. Depositions are used not only to get the information asked about, but also to see how the person would be as a witness at trial – do they seem credible? look nervous? answer questions articulately – or not? Many crazy examples of depositions can be found on YouTube; here is one of my favorite examples of how not to answer a deposition question: http://www.youtube.com/watch?feature=fvwrel&NR=1&v=RjtnRmy0H-U

But, before the case even gets to the deposition stage, other forms of discovery – called “written discovery” – will have been used. Why? Because your opponent’s responses to written discovery will form the basis of questions asked at the deposition. Written discovery includes: Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission. [In some cases, parties might also do a Site Inspection of land, or ask for “Things,” i.e. anything that is not a document.]

Let’s look at Form Interrogatories first. Form Interrogatories are a set of questions put out by the Judicial Counsel of California and can be found online at http://www.courts.ca.gov/documents/disc001.pdf.

Good ahead – take a look. Interrogatory number 2.8 asks: “Have you ever been convicted of a felony? If so, for each conviction state a) the city and state where you were convicted, b) date of conviction, c) the offense, and d) the court and case number.” You have to answer that question if the other side asks it. And they surely will ask that question, because a past felony conviction can be used against a person at trial to try to show they are dishonest.

A party to a lawsuit must answer, truthfully and fully (under penalty of perjury), any deposition question, interrogatory, request for documents, etc. that is asked, unless a legal objection can be made. Legal objections include grounds like irrelevant, requires speculation, calls for a legal conclusion, invasion of privacy, or that the question is vague and ambiguous. If a “responding party” refuses to answer based on an objection, the “asking party” might file a Motion to Compel in court, seeking a Court Order requiring the responding party to respond (and, most importantly, awarding monetary fines for “discovery abuse.”). This back and forth between the parties of written discovery and depositions, and, if needed, motions to compel, is the civil discovery process. The parties also have a duty to try to resolve discovery disputes informally, before resorting to filing a Motion to Compel.

Unlike the Judicial Counsel Form Interrogatories, Special Interrogatories are questions specially drafted for the particular case at hand. For example, to draw upon one of my own eviction defense cases, a special interrogatory might be phrased: “Describe in detail all bathroom ceiling repairs that were made by LANDLORD in the UNIT between March 2009 and March 2011.”

Requests for Admission are used to draw out admissions from the other side that may be used against them: “ADMIT that LANDLORD was informed by TENANT in a letter dated May 2, 2009 that the back stairwell of the UNIT had a missing step.” And a Requests for Production of Documents is used to obtain relevant documents from the other side: “Produce all DOCUMENTS related to LANDLORD’s inspection of the UNIT on March 3, 2011, including but not limited to notices to TENANT and reports of needed repairs.” 

On top of all this, after getting responses to one “set” of Interrogatories and Requests,  the asking party may ask another set of interrogatories and requests…and another set and another set. 

You get the idea. Lawsuits sometimes take a long time to be resolved, and the process of civil discovery is one of the reasons why. In a relatively simple case, discovery may consist of an exchange of only one set of interrogatories and requests, and a deposition or two (or even less). In a complex case, multiple sets of written discovery and many depositions may be called for. 

The process of civil discovery also explains why most cases settle before trial: both sides have a pretty good idea of what the facts will probably prove, will probably not prove, or maybe, just maybe prove.

In conclusion, I love civil discovery!

DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation; the information provided is for educational and informational purposes only. It is intended for California only. 

With all the new construction and condo conversions going on in San Francisco, it’s a good time to talk about NOISE. When can a construction crew start the jackhammers and cranes? A lot of people think it is 8 a.m., which might seem reasonable, since the “workday” begins at 9:00 a.m. and presumably most people will be getting up a bit before that to get ready. The jackhammer outside won’t wake anyone up, because they are already up. Unfortunately, the law is not always reasonable: 7:00 a.m. may be your jackhammer wake up call. And the work can continue until 8:00 p.m., 7 days a week, including holidays. 

Construction noise complaints in San Francisco should be directed to the Department of Building Inspection (“DBI”) at (415) 558-6570, but if construction is taking place beyond the allowed hours, you should contact your local police station. 

Construction taking place outside the 7:00 a.m. – 8:00 p.m. time frame must, according to the DBI, “not exceed the noise level of five decibels at the nearest lot line unless a special permit has been granted to allow this.  Five decibels is similar to the sound of a screw gun installing screws in drywall.”   

If you are on the building/construction end of things, instead of the sleeping tenant side, keep in mind my legal principle Number One: the best way to handle legal problems is to prevent them from arising. Just because you can start construction work at 7 in the morning, doesn’t mean you have to. Try giving advance notice to neighboring tenants and working with them for their cooperation and understanding.

Of course, there is also the problem of the noisy neighbor when the noise is not related to construction… stay tuned for a blog on that topic!

For any sort of noise issue, note that there are free Decibel Meter applications on smartphones, and your first step should be to record the objective evidence of the noise level.

Sometimes the economy is bad, which means budget cuts may lead to layoffs. Also, in all times, there is the situation where your boss, supervisor, or other higher-up may just not like you -- or be discriminating or retaliating against you. If you have a mid- or high-level position in a for-profit or non-profit enterprise, you might be offered a severance package upon being terminated, as a matter of course. Although less common, even employees with minimum wage or low wage jobs (wait staff, retailer workers, etc.) may be offered a severance payment. In any case, whatever job you are losing, Unemployment Insurance Benefits may not be enough to live on. Obtaining a decent severance package becomes essential, as it may hold you over until you can find new work. This blog post covers some of the main considerations involved in obtaining a severance agreement.

Don’t let your employer pressure you to sign the agreement “by tomorrow” or some other unreasonably short period of time, as they routinely do. Take your time and, of course, consider consulting an attorney. Tell the employer that you need to consult an attorney, and that you will get back to them in a week. (If you are over 40 years of age, you have special rights under federal law, including, among others, having 21 days to sign or not, if the agreement requires you to release an age discrimination claim.)

If you get wind that you may be laid off or fired (especially if it’s a “my boss is an idiot and we clash all the time, she’s gonna can me” situation), you may want to take the initiative and offer to leave employment, so long as you get a severance package.

Never say that you are “quitting” or “resigning” – some severance agreements are entitled “resignation agreement.” This benefits the employer and may disqualify you for Unemployment Benefits. Get that language changed before you sign.

Make sure that there is explicit language in the proper legal parlance that indicates that the employer will not challenge your claim for Unemployment Benefits, and has language to avoid other possible pitfalls related to such a claim.

Consider the importance of a provision that will allow you to get a good reference, or even a written letter of recommendation, or a press release that sings your praises.

Consider any other possible provisions to your benefit, such as staying on a company insurance plan for a period of time.

Even if you are laid off or fired without being offered a severance package, you may be able to negotiate one after the fact. But act fast.

Now, another very important point: $$$MONEY$$$. Whatever your employer offers, you may be able to get more money. It is not uncommon for an employer to offer even a long term employee only three weeks pay total, or just one week of pay for each year you have worked– but you may be able to get more. 

In general, the stronger any possible legal claims you have against your employer, the more money you might get. That is the key interplay in severance package negotiations: you take money in exchange for releasing any legal claims you might have against your employer for wrongful termination, discrimination, retaliation, unpaid overtime wages, or otherwise. In my experience, a severance package calculation of a month’s pay for each year of employment is possible, but your employer is not going to make that in an initial offer. So, for example, if you worked for a company for six years, you would get a lump sum severance package payment of six month’s pay… a much better deal than an employer’s typical initial offer. If you have viable claims of retaliation or discrimination (e.g. race, disability, gender) you could potentially get a significant amount of cash for a release of claims. Of course, what amount of severance payment is reasonable and possible depends on the facts of the case.

There are other important points, and applicable laws, to consider when negotiating a severance package – but, in sum, if you are terminated from employment or worried about termination, obtaining an acceptable severance agreement may serve as a bandage in hard times.

A severance agreement may also be obtained by a high value employee who wishes to leave his or her job. Such an employee may have practical leverage to obtain a severance agreement.  Best to not quit or resign before attempting to get a severance agreement.   

DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation; the information provided is for educational and informational purposes only. It is intended for California only.

Some California statutes provide not only for civil penalties for violating the law, but also for criminal penalties, including jail time. But don’t get too excited; it is often not wise to make a police report when you have been harmed. You are probably familiar with famous examples of the crime/lawsuit combination like the O.J. Simpson case, where O.J. beat his murder charge (a crime), but lost a ‘wrongful death’ case (civil lawsuit) brought by Nicole Brown’s family. However, there are less dramatic examples. One instance is Section 970 of the California Labor Code. In my last blog post, I explained the civil penalties under Section 970: see post immediately below: “You Move, You Might Lose.” But, in addition to the civil penalties, “Any person…who violates Section 970 is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or imprisonment for not more than six months or both.” But, if you want to sue your boss under Section 970, it’s probably not a good idea make a report that could land him in jail. Why? Because the more money your boss needs to spend on a criminal defense attorney, the less money he will have to settle your case, and if he’s in jail, he may be going broke by not earning any money at all. 

An example from the Landlord/Tenant arena is the lock-out situation, where a landlord unlawfully locks a tenant out of their apartment. California Civil Code section 789.3 provides for civil penalties: “Any landlord who violates this section shall be liable to the tenant in a civil action for all of the following: (1) Actual damages of the tenant, and (2) An amount not to exceed one hundred dollars ($100) for each day or part thereof the landlord remains in violation of this section.” But, a lockout is also a misdemeanor crime. Again, if you plan to sue, it may not be wise to get your landlord arrested and thrown in jail. 

In sum, if you intend to bring a civil lawsuit for your money damages, sometimes it is smart to NOT notify the police. An attorney can help you decide when or whether to make a police report.

Ahh, but you might be thinking, well, my attorney can threaten to call the police in order to force a good settlement of my claims. Wrong. It is impermissible for an attorney to use the threat of making a police report (or other kinds of charges) as leverage is a civil lawsuit. Rule 5-100 of the California Rules of Professional Conduct states that an attorney “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Doing so subjects the attorney to suspension, fines and possible disbarment. Even a non-attorney needs to be careful, because such a threat may constitute extortion (“blackmail” under Penal Code section 518), or at least put you at risk of such a claim. The upshot of this is that you – and your attorney – need to either make a report or not, should not use it as a threat, and should think through the implications of the options before choosing.

This final illustration comes from one of my own cases: an unscrupulous individual (call him Rob) succeeded in getting a senior citizen – who became my client – to loan him a substantial amount of money and never paid it back. I sued on the senior’s behalf for civil fraud, elder abuse, breach of contract, and other claims, some of which made punitive as well as actual damages available. Although, I believe, Rob’s actions constituted a serious crime, I advised my client not to make a police report. If we had, and Rob was sitting behind bars, a civil settlement would have been unlikely indeed.

This week alone I heard from two different people who moved to California for a job that was offered them, only to be laid off not long after unpacking, or surprised that the job they were doing was not exactly what was promised. Time for a blog post about a little known California law that gives disappointed employees some legal rights in such a situation. There is a law that makes it illegal for an employer to induce someone to move to California – or to move from one place to another within California – based on misrepresentation. The misrepresentation could be of the kind or character of the work, the length of time the job will last, or other features of the job. This law applies even if you are an “at-will” employee. 

Specifically, California Labor Code Section 970 states:  

 “No person…directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either:

a) The kind, character, or existence of such work;

b) The length of time such work will last, or the compensation therefor;

c) The sanitary or housing conditions relating to or surrounding the work;

d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought.” 

An employer who violates any provision of Section 970 is “liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations.” In other words, the disappointed worker may be able to recover moving expenses, lost wages, rent increases – times two. In addition, California law allows for punitive damages under other laws such as common law fraud. 

Whether or not you have a basis for a lawsuit under Section 970 will depend, of course, on the particular facts of your job offer, what was said by your employer, and what exactly happened after you moved, your job duties and so on. An attorney can determine if your boss is playing the “you move, you lose” game, and if you can get the upper hand by bringing a Section 970 claim. 

Although Section 970 only applies to employees (not independent contractors), contractors could bring similar lawsuits based on fraud.

Often, when people come to me for a legal consult, the word “harassment” comes up; clients say that someone – another tenant, neighbor, landlord or coworker – is “harassing” them, and ask if they can “sue for harassment?” Unfortunately, usually the answer is “no.” 

A lot of annoying behavior does not rise to the level required to make out a legal claim for what might be called, in colloquial terms, harassment. There are specific legal claims that a wrongdoer’s acts might fall under, e.g. sexual harassment, civil assault or battery, or intentional infliction of emotional distress. However, a boss who shouts and screams at you, a neighbor who pounds on the wall every time you play music, or a landlord who tries to evict you for being one day late in rent, is not going to be liable for any form of harassment. Essentially, it is legal to be annoying.

On top of the legality of being annoying, some actions that people commonly describe as “harassment” are protected as “free speech” and/or the “right to petition.” For example, suppose a landlord tries to evict a tenant based on a bogus reason. “That’s just plain harassment!” But the fact is, a landlord’s serving a legal notice and/or filing a civil lawsuit for eviction is protected free speech/right to petition that the tenant must defend against – claiming it is “harassment” is not a legitimate defense and will fall on the deaf ears of justice. If a tenant were to bring an affirmative suit for attempted wrongful eviction based on a landlord’s serving a notice of eviction, the lawsuit would be subject to a landlord’s Anti-SLAPP motion to dismiss the case. (Anti-SLAPP refers to a motion to dismiss because the eviction notice is protected by free speech/right to petition.) Possible strategies might be available to a tenant in this situation, such as a claim for 'abuse of process' or ‘wrongful eviction,’ but each of these claims are difficult to establish and must rely on facts other than the mere filing of a lawsuit or service of a notice to evict, both of which are protected as free speech/right to petition. Likewise, your annoying neighbor’s calls to the police every time you play your saxophone (“That’s just plain harassment!”) are protected as free speech.

However, there is a civil violation on the books called “harassment.” California Code of Civil Procedure section 527.6 defines harassment as: “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.” (This is civil harassment, not a criminal charge.)

With this definition in mind, you can see that the behavior of your annoying neighbor, etc. must rise to a very high level of annoyance to meet the standard of civil harassment. However, if it does, you can obtain a Restraining Order against that person. More information about Restraining Orders can be found at:   http://www.sfsuperiorcourt.org/divisions/civil/harassment

In sum, you can’t always resort to the courts when you have a dispute. An attorney can help you determine if you have a legal case or grounds to get a restraining order. Also, remember to not overreact when someone is annoying you, or YOU may cross the line into harassment or assault! Look for ways to peaceably resolve your conflict.

[Note: if you want protection from someone you are dating (or used to date), married to (or were married to); or closely related to (like a parent, child, brother or sister, grandparent, or grandchild), then this falls into the category of Domestic Violence, and must seek a Restraining Order in the court’s Family Law department.]  

You and your attorney have been to hell and back, “hell” being written discovery, depositions, mediation, or just pre-litigation negotiations. But, now, you have settled the case. Great! You know what this means: the case is done, over with – you didn’t win, or lose… you settled. But now you are handed (or, emailed) a “settlement agreement” that you need to sign: a “written settlement agreement” with a lot of legalese. What does the legalese mean? This blog post explains a one key component to any standard settlement agreement: the release of all claims. 

First, an overview: any standard settlement agreement will require you to settle ALL claims – known and unknown that may exist at the time of the settlement. Settling unknown claims is a risk you take. However, in most cases it should be pretty clear that there are no unknown claims. For example, suppose a tenant sues her landlord for ‘wrongful endeavor to evict.’ The case settles at, say, $20,000.00. The tenant and landlord will each need to release ALL claims that may exist against the other regarding the property. So, for example, the tenant would be releasing any habitability claims she may have – unknown or unknown. But the tenant will likely know if there are any problems in the unit at the time, so the risk is not that great. Likewise, the landlord will release any claims that she might have against the tenant that exist at the time. Another example: in the employment law context, suppose a worker sues his employer for unpaid overtime. The case settles for $20,000.00. The release of claims in this case will cover all claims – known and unknown – pertaining to that worker’s rights to, say, meal and rest periods. If the worker didn’t get them, he should bring that up in the current lawsuit, or he will lose his right to bring a claim in the future, since the settlement contains a release of ALL claims that exist at the time. Still, in some cases, there may be a genuine risk. Suppose you are in a relatively minor car accident (you suffered whiplash and a broken nose) and you sue the other driver for negligence. The case settles for $10,000.00 and you sign a release of all claims – unknown included. Six months later you discover that the car accident also caused severe injury to your knee (which you did not notice at the time, and doctors did not discover). You will never walk again. Can you go back and sue the other driver for that knee injury? No! You released all claims – known and unknown that existed at the time of settlement. Although, even in this car accident scenario, you presumably would have had a thorough exam and found all injuries, so, again, the realistic risk is not that great. 

The language in a standard settlement agreement gets complicated because there is a California law (Civil Code 1542) that states that a general release of claims does not extend to unknown claims! So, the parties need to waive their rights under that law in order to release unknown claims. Now, the legalese. 

In your settlement agreement you will find these two paragraphs, usually somewhere in the middle of the agreement:

The Parties acknowledge that they have been advised of and/or are familiar with the provisions of California Civil Code Section 1542 which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which, if known by him or her must have materially affected his or her settlement with the debtor.”      

The Parties hereby expressly waives any and all rights that they may have under California Civil Code Section 1542 against each other relating to or arising out of the Claims or any past dealings or relationship with each other.