Categories : Current Topics Immigration
The Mexican Repatriation
This article was originally published in the Sep/Oct 2021 issue of San Diego Lawyer Magazine.
Categories : Current Topics Employment Law Law Practice Legal Ethics
Calling The Shots: The Law of Mandatory COVID-19 Vaccination in the California Workplace
This article was originally published in the July/Aug 2021 issue of San Diego Lawyer Magazine.
Categories : Environmental-Law For New Attorneys For the Record July-2021
Organics Out of Landfills (OOL); Methane Pollution Reduction, a Quick Legal Summary of Compliance Developments
By Alison Schlick, Attorney at Law
California continues to experience the effects of a climate crisis including, hotter summers with world record-breaking temperatures, devastating wildfires with longer fire seasons, megadroughts, and rising sea levels. Greenhouse Gases (GHGs) are a result of human activities such as burying food and yard waste in landfills and contribute to the ongoing effects of climate change. Organic waste, which includes food scraps, yard trimmings, paper and cardboard, makes up half of what Californians dump in landfills.
Categories : Taxation
A Few Changes to Federal and State Taxes in 2021
There are several notable changes to the state and federal tax laws this year, including Proposition 19 and increases in federal personal income tax rates.
Categories : Information on Different Areas of Law Insurance
Insurance Law: Failure to Defend and Denial of Insurance Claims
Failure to Defend
The failure to defend a policyholder in a lawsuit is a form of insurance bad faith. Insurance companies acting in bad faith typically do not uphold the following:
The failure to defend a policyholder in a lawsuit is a form of insurance bad faith. Insurance companies acting in bad faith typically do not uphold the following:
- If you are the policyholder and were sued for an accident that occurred on your property, then your insurance company has the duty to defend you.
- If you were sued for causing a car accident that resulted in injuries, your insurance company is obligated to defend you.
Denial of Insurance Claims
Most insurance policyholders are shocked when they receive a denial of benefits letter from their insurance company saying that the company has denied payment on a claim or canceled the policy. The policyholder, who has faithfully made payments for years, understandably feels he or she has been treated unfairly by the insurance company. Here are some reasons for underpaid claims or claim denials:
- The claim made was not covered by the policy because of an exclusion or because it is the wrong type of policy.
- The claim was poorly presented, so the insurance company wrongly decided that the claim was not covered.
- An insurance adjuster failed to review the evidence in good faith, and the adjuster had already decided to deny the policy.
For more key issues in insurance law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have an insurance law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at
www.sdcba.org/ineedalawyer
Categories : Information on Different Areas of Law
Appellate Law: Key Issues And Terms
In both civil and criminal cases, an appeal is a process in which a party who is dissatisfied with the outcome of a case in a lower court can petition a higher court to review the case. Here is some basic information that may help you out if you are considering filing an appeal:
Appeals Process
Generally, an appeal is a process in which a party who is dissatisfied with the outcome of a case in a lower court will petition a higher court to review the case. For those who file an appeal, you may want to consult an appellate lawyer.
The appellate courts (Court of Appeals and Supreme Court) do not retry cases or hear new evidence. Rather, they review what occurred in trial court and make sure the proper law was applied and the proceedings were fair. Each side presents a written argument to the appellate court in a document called a “brief.”
Understanding How to Appeal
You first need to know where and when you can file an appeal. In the San Diego Superior Court, you can file a notice of appeal in the Superior Court Appellate Division in the downtown courthouse. North County’s court currently accepts the notice of appeal on cases originating there, but be sure to check on this before you go to file your appeal.
In the appeals process, it is critical that you visit the San Diego Superior Court website at http://www.sdcourt.ca.gov and go to the Appeals section. If you miss the final date for filing an appeal, you will not be able to file it.
Opposing Parties — Notification
All appeals filed with the Court must be accompanied with a Proof of Service. This may be personal service or service by mail. Generally, personal service should be done by a person over the age of 18 and not a party to the action. The proof of service must be filled out completely and correctly, so you must educate yourself on the requirements.
Oral Argument
Very often the filing of the briefs will provide the appellate judges with all of the information they need to decide a case, but there is also an opportunity for both sides to present an oral argument. The judges will not want the briefs to be read aloud or restated in an oral argument since they have already read them. The parties may want to use the oral argument time to clarify points previously made or highlight what they believe is important or to answer questions from the judges. Either side may choose to participate in oral argument or not, and failure to respond to a request to appear is an assumption that the party has waived the right to present an oral argument.
Appeals Court Decision Process and Timing
The case will be submitted to the Appeals Court once the oral arguments or the time for oral arguments has passed. At this time neither of the parties may submit any additional information to the Court, and a decision on the appeal will be given within 90 days. All parties will be notified by mail of the court’s decision.
Petition for Rehearing
If you lose an appeal, you can file a petition for rehearing in the appellate court asking the court to correct an important mistake in its decision, such as a major misstatement of fact, an error of law, major law or facts that were left out, or an important argument that was not included. The petition must generally be served and filed within 15 days of the filing of the appellate court’s decision (California courts).
Higher Court Appeals
If you lose your appeal, you may be able to transfer to the Court of Appeal, if your case originated in the appellate division of the Superior Court. If it originated in the Court of Appeal, then you can ask the California Supreme Court to review the decision.
For more key issues in appellate law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have an appellate law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at
www.sdcba.org/ineedalawyer
Categories : Insurance
Bad Faith Insurance Claims: The Basics
If you believe your insurance company has acted in “bad faith” it may be helpful to know a few basic things. Here is some information to help you out:
When you hire an insurance company, you sign a contract with them that states that they will act in “good faith” toward you. In some instances, insurance companies do not fulfill their promises to the insured, unjustly withholding benefits and laying the foundation for bad faith lawsuits. This is what is called acting in “bad faith”:
- Failing to thoroughly investigate a claim
- Delaying payment
- Denying benefits to a claim unjustly
- Refusing to settle a case
- Failure to reimburse you in entirety
- Consumer Communications Bureau (Hotline)
The California Department of Insurance operates a statewide toll-free consumer hotline at 800-927-HELP (4357), which provides callers with immediate access to current information on insurance issues. The hotline is staffed by knowledgeable insurance professionals who can answer questions, give direction and provide assistance to consumers who are experiencing insurance-related problems or concerns. By calling the hotline, a consumer or their insurance lawyer can ask questions on insurance claims and underwriting practices as well as check the license status of his/her insurance company, agent or broker.
After listening to and discussing a consumer’s concerns over the phone, a hotline officer may decide to send the consumer a Request for Assistance (RFA) form to be completed and returned to the department. The RFA provides the necessary information to open a complaint investigation, which will be handled by officers in the Claims Services Bureau or the Rating and Underwriting Services Bureau, depending on the subject matter involved. Within 10 working days, the consumer will receive an acknowledgment from the officer who will be handling the file.
Claims Services Bureau
The Claims Services Bureau is responsible for investigating, evaluating and resolving all consumer claims complaints regarding claims handling practices.
Rating and Underwriting Services Bureau
The Rating and Underwriting Services Bureau is responsible for investigating, evaluating and resolving all consumer rate and underwriting complaints.
Consumer Education
Along with assisting consumers with specific insurance concerns, the California Department of Insurance publishes free brochures to help consumers become aware of their rights and to aid them in making informed insurance decisions. These publications can be requested by calling toll-free 800-927-HELP (4357). Also, as part of the department’s mission to protect consumers, the Education and Outreach Program provides speakers who can travel off-site to participate in public events, such as town hall meetings, business and community fairs and professional association events.
For more key issues in insurance law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have an insurance law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at
www.sdcba.org/ineedalawyer
Categories : Family Law
Paternity: Basic Information and Key Terms
For various reasons, parents may need to establish paternity of their child. Here is some basic information and key terms to help you out:
What is Paternity?
Paternity is the legal establishment or the acknowledgment of the relationship of a father or mother to his or her child. While the identity of a child’s biological mother is usually easy to establish, the father’s or second parent’s identity may be more difficult to determine, which is why a family law attorney is helpful.
For married parents, the husband is typically assumed to be the child’s legal father. For parents who were not married at the time the woman got pregnant or when the child is born, the child may have a biological father but does not have a legal father until parentage is legally established. Unwed mothers will be asked to provide the name of the birth father when the birth certificate paperwork is being completed at the hospital. However, unless the father is present at the hospital and signs a “declaration of paternity” the father’s name will not appear on the child’s birth certificate.
When and why should paternity be established?
Paternity should be established before birth, at the time of birth or as soon as possible afterward. It is relatively easy to establish paternity at the time of birth at the hospital when the birth certificate information is being taken, and establishing parentage at that time helps the parents to avoid future court processes and fees as well as fees from the family law attorney.
Establishing paternity before or at the time of a child’s birth ensures security and protection of legal rights for the child. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health insurance, social security and other issues. For example, if the father should die before paternity is established, then the child may lose rights to his life insurance proceeds or forever be barred from collecting the father’s social security or veteran benefits. In addition to all of this, the Court will not make any orders related to child custody, visitation or support until the parentage is legally established. So, for many reasons, it is important to establish this relationship.
What does it mean to be a “presumed parent”?
The law will presume a person is a child’s other parent, with all of the rights and responsibilities, when certain circumstances exist. These presumptions that apply to married couples also apply to those who entered into a registered domestic partnership after January 2005, but again, be sure to check the laws on these matters since they are constantly evolving and are complicated. Hence, it is probably best to consult with a family law attorney. According to the website of the California Administrative Office of the Courts, these are some of the circumstances where a man is presumed to be a child’s father.
What is a declaration of paternity (DOP)?
This is a form the parents voluntarily sign to acknowledging the legal father of the child. It is a legal form that may be signed in the hospital when the child is born or afterwards. The signing of this form by both parents will establish the father–child relationship without having to go to court. When the DOP form is signed at the hospital, staff in the hospital shall witness the signatures of parents signing a voluntary declaration of paternity and shall forward the signed declaration to the Department of Child Support Services within 20 days of the date the declaration was signed.
A copy of the declaration shall be made available to each of the attesting parents. Unmarried parents who sign the acknowledgment of paternity form help their child gain the same rights and privileges of a child born within a marriage.
These rights may include financial support from both parents, access to important family medical records, access to the noncustodial parent’s medical benefits, and the emotional benefit of knowing the identity of both parents. A voluntary declaration of paternity shall be recognized as the basis for the establishment of an order for child custody and visitation or support.
For more key issues and information about paternity and family law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have a family law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at
www.sdcba.org/ineedalawyer
Categories : Consumer Fraud
Lemon Law: Basic Info and Key Terms
You may have heard of “Lemon Law,” but do you know what it means and entails? Here is some basic information to help you out:
Throughout the United States, according to the Consumer Federation of America, complaints about automobiles rank in the top three out of four consumer fraud complaints. These complaints involve used car sales, new car sales and automotive repairs. Most states have consumer protection laws that deal with these complaints, and laws dealing with some of these complaints are called lemon laws.
California is known to have one of the most extensive or strict lemon law statutes in the nation. This protection is called the Song-Beverly Consumer Warranty Act and is found in section 1790 and a few subsequent sections of the California Civil Code. Additionally, the Civil Code Sections 1793.2, etc., also called the Tanner Consumer Protection Act, exist to protect consumers who have several repeated repair visits to the dealer for factory warranty repairs. A factory warranty is one given to the consumer at the time of purchase by the automobile manufacturer and may include new cars, used cars (still covered under the manufacturer’s new car warranty) or even certified pre-owned cars still covered by this initial warranty.
In a general sense, the purpose of the lemon law is to protect consumers who lease or purchase a truck, a van, a car or a motor home, either for their personal use or in some cases for limited business use.
Consumer Lemon Law Rights, Roles of Manufacturers and Lemon Law Lawyers
Lemon law rights are rights that a California consumer has under the state’s lemon law. These can be laws that pertain to lemon law lawyers, product manufacturers and other rights, including, but not limited to, the following:
- The consumer may be entitled to a replacement (new vehicle), repurchase (buyback) of the vehicle or a cash settlement upon the resolution of a lemon law case.
- The consumer may be represented by a lemon law firm and its lawyers without paying a retainer fee (initial out-of-pocket expense).
- The consumer may be entitled, under lemon law consumer rights, to a refund of the purchase price of the vehicle minus a usage fee that will be based upon their usage of the vehicle up to the time when the repair problems started to occur.
- The consumer may be entitled to have the attorney fees and costs paid by the manufacturer. Under lemon law rights, the consumer may be allowed to keep their vehicle and not pay any costs or attorney fees when the attorney is unable to reach a satisfactory resolution of their case.
For more information on personal injury law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have a consumer law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at
www.sdcba.org/ineedalawyer
Categories : Employment Law
Employment Law: What You Should Know
California law protects employees in myriad ways. From wrongful termination to safety in the workplace and more, it’s helpful to know a few basic things about employment law and how you may be affected. Here is some basic information to know:
Do You Believe You Have Been Wrongfully Terminated from Your Job?
This may occur when an employer has discharged or laid off an employee in violation of a legal right of the employee, sometimes based on an employer/employee contract. In extreme circumstances, an employee may quit and still bring a claim for wrongful termination (“constructive discharge”).
Do You Have a Sexual Harassment Claim?
Unwelcome sexual advances or conduct on the job that creates an intimidating, hostile or offensive working environment. The unwelcome sexual conduct can be from a supervisor, coworker, independent contractor or client. Sexually harassing behavior ranges from repeated offensive jokes or innuendos, inappropriate touching and requesting sexual favors for pay or promotions, to outright sexual assault or a workplace full of pornography. Once a claim is made, employers are legally required to conduct an investigation to determine if discrimination or harassment occurred and prevent future discrimination or harassment.
What Does Workplace Discrimination Entail?
According to attorneys practicing employment law, workplace discrimination occurs when an employee suffers unfavorable or unfair treatment due race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person or receives unequal compensation for equal work based on gender or race. If you experience any type of employee discrimination, a lawyer may be able to help you with your case.
Do You Have a Wage & Hour Claim?
Employee lawsuits can arise from unpaid overtime or commissions, uncompensated meal or rest breaks, minimum wage or other violations of state or federal wage and hour laws. These rules are painfully complex. Many claims occur as a result of employers misclassifying employees as independent contractors.
Are You Aware of Your Rights if You Are under a Union Contract?
These cases involve the rights under a union contract or a local union’s failure to represent a member’s interests fairly. For example, an employer cannot retaliate against an employee for union activities, and a union agent cannot threaten an employee with potential loss of a job if the employee does not support union activities; otherwise, employee discrimination lawyers may bring a case against the employer.
Do You Have a Safe Workplace?
OSHA, the Occupational Safety and Health Administration, and its California equivalent, CALOSHA, set and enforces particular standards for safety. If employers fail to comply with these requirements, causing risk or harm to employees, then lawsuits may hold them liable for negligence. Workplace lawyers may bring a case citing OSHA requirements.
For more key issues in employment law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have an employment law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at
www.sdcba.org/ineedalawyer