Ad Astra Law Group, LLP

The Opening Day TRO

Extraordinary times call for extraordinary measures. And California civil procedure has an answer to the need for immediate orders from a court: you can, on one day, file your case, make your first motion, obtain a temporary restraining order, and have the court set a date when the defendant is ordered to show cause why a Temporary Restraining Order should not be granted.

What is the trick to winning such a big, early victory for a client?

First, the relief must fit the facts. That the defendant owes a lot of money is typically not going to be enough for an early court order. A court can order the defendant to pay later. The Opening Day TRO requires something more than just monetary damages.

Second, you, the attorney, should get to know the courtroom. Different counties have different procedures. Marin County assigns cases to a single judge, so that same judge hears your ex parte application, your noticed motions, your case management issues, and your trial. San Francisco assigns several judges to civil trials full-time, while two different courtrooms handle motions (Department 501 for cases dealing with real property and housing, Department 302 for everything else). And while some judges take the bench, others send out a clerk to talk to the parties and report back with the papers. Having experience in the specific courtroom is best, but if you don’t have that, at least show up and watch ex parte applications in the appropriate courtroom.

Third, cross your t’s and dot your i’s. The easiest way for a court to deny an ex parte application is for failure to follow procedure. Sometimes that means delivering a courtesy copy of your papers even before you file them at the clerk’s office. Don’t worry if it seems strange, you will be more successful if you just do what the court wants.

Unexpected Litigation Costs

Author: Michael S. Dorsi

Many clients actively work with their attorneys to minimize their bills, and understandably so. Some choices are within the client’s control, such as making a motion for summary judgment. Others are not — like when the other side files a motion.

I have always understood the conventional wisdom to be that the moving party ends up with a larger bill for motion work – at least in California where the moving party writes two briefs, while the opposing party writes only one.[1] But a review of past matters suggests this may be incorrect.

Looking at federal court motions in the 2014-2016 timeframe, I found that opposing a motion often consumed more attorney hours — and resulted in higher bills — than making a similar motion. It was a small sample size, but the result is consistent with a different analysis: when you decide the strategy, you have more control over costs. But when the other side picks their spots, maybe lawyers end up spending more time adjusting to the other side’s focus.

Attorneys: does this match your experience?

Academics: there are a lot of attorney bills in the public domain because of fee applications — perhaps this would be a good subject for research . . .

[1] Some courts, such as the U.S. District Court for the District of Massachusetts, have only one brief by each side unless there is a reason to have additional briefing. See D. Mass. Local Rule 7.1(b)(2)–(3).

Update on 2017 Transgender Protection Regulations

Author: Trina Clayton

With the recent media frenzy surrounding President Trump’s attempt to ban transgender individuals from serving in the military, and Attorney General Jeff Sessions’ formal determination that federal civil rights law does not protect transgender workers from employment discrimination, we thought it a particularly fitting time to highlight some of the new 2017 rights and protections afforded to transgender individuals, here in California.

In May 2017, the California Department of Fair Employment and Housing (DFEH) approved new regulations regarding transgender identity and expression in the workplace. A new definition for “transitioning” was added and the regulations now prohibit discrimination against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. The regulations became effective July 1, 2017.

Restroom Facilities

Under the new regulations, employers must provide equal access to comparable, safe and adequate facilities without regard to the sex of the employee.

All employees have the right to use a facility that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth. An employer may not REQUIRE an employee to use particular facility and they are not allowed to ask for “proof” from an employee to allow them to use a particular facility.

This regulation applies to more than just bathrooms. It also applies to other facilities including locker rooms and showering areas. In order to protect the rights of ALL employees, employers shall provide feasible options to maintain privacy – such options might include locking toilet stalls, staggered shower schedules, and shower curtains.

Dress Standard

The 2017 regulations make it unlawful to impose upon an applicant or employee any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression – unless the employer can establish a business necessity. Please note, “business necessity” is a difficult hurdle to overcome and “customer preference” is not considered as such. If an employer does have a dress standard, it must be enforced in a non-discriminatory manner.

Preferred Name and Identity

The new regulations require employers to honor an employee’s request to be identified by a preferred 1) gender and 2) name or pronoun – including gender-neutral pronouns. An employer can be held liable for a FEHA violation if the employer fails to abide by an employee’s stated preference. Employers can only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.

Documentation

An employer cannot inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.

Employers should ensure their policies comply with these new regulations regarding transgender identity and expression. Employers should also review their employee handbooks to make sure any policies contained therein comply with the new regulations. For specific legal advice regarding transgender regulations or any other employment issue, please contact Ad Astra for guidance.

Harassment Prevention Training Expansion – Transgender Rights – SB 396

Author: Trina Clayton

With the federal government’s seemingly monthly attempts to chip away at the rights of transgender individuals – we wanted to start off 2018 with some positive news for the transgender community in California. State law will soon expand mandatory harassment training to include training on transgender rights.

Current law requires California employers with 50 or more employees to provide supervisors with two hour of sexual harassment prevention training within six months of their assumption of a supervisory position, and every two years, as specified. With the passage of Senate Bill 396, this training will now be required to include training on harassment based on gender identity, gender expression and sexual orientation. SB 396 also requires employers to display a poster regarding transgender rights in a prominent and accessible location in the workplace – the Department of Fair Employment and Housing will develop this poster.

Other 2018 law relating to transgender rights will be discussed in greater detail in a subsequent blog. Analysis of 2017 laws expanding the rights for transgender individuals can be found here. For specific legal advice regarding transgender regulations or any other employment issue, please contact Ad Astra for guidance.

California Fair Pay Act Expansion – AB 46

Author: Trina Clayton

As an important reminder, in 2016, California enacted the Fair Pay Act, which revised and expanded previous state law relating to gender pay inequality – the Fair Pay Act was expanded in 2017 to address racial/ethnic wage disparity.

The current law prohibits a private employer from paying any of its employees wage rates that are less than the rates paid to employees of another gender, race or ethnicity, for substantially similar work. If such a wage differential exists, an employer must be able to show that specific and reasonably applied factors account for the entire differential. These factors include:

Seniority systems
Merit systems
Systems that measure quality or quantity of production; or,
A “bona fide factor” other than sex, race, or ethnicity such as education, training, or experience.

In addition, the Fair Pay Act states that prior salary cannot, by itself, justify a disparity in compensation. Unlike FEHA, the California Fair Pay Act does not require an employee show that the employer had any discriminatory intent.

Beginning January 1^st, 2018, AB 46 will expand the Fair Pay Act to also cover public employers. Public employers will not, however, be subject to the Labor Code provision applicable to private employers that makes willful violation of the Fair Pay Act a misdemeanor. For specific legal advice regarding the California Fair Pay Act or any other employment issue, please contact Ad Astra for guidance.

Salary Inquiry Ban – AB 168

Author: Trina Clayton

Women – Have you ever felt that you were being paid less money than the men sitting right next to you, doing pretty much the same work? Were there times where you actually knew this to be the case? You are not alone!

Several studies reflect the unfortunate reality that women have historically been paid less than their male counterparts for performing substantially similar work. AB 168 was enacted to try and fix this persistent gender pay disparity. The rationale for AB 168 being that pay inequities are perpetuated when current pay is based on past employer decisions that could have been discriminatory.

Everyone is familiar with the situation – you are applying for a new job. Maybe you are applying online, maybe you are talking to a recruiter or the director of Human Resources. Inevitably, the question is asked – “How much were you making at your last job?” The reason for asking this question might be benign, but, unfortunately, it has been shown to have a notable discriminatory effect. If a female applicant had been discriminated against at her prior place of employment (by receiving less pay than her male counterparts), the new employer might feel justified in offering her a lower salary at the new job since, “that is what she was making before.”

AB 168 makes it unlawful for California employers, including state and local governments, to ask applicants about their prior salary, compensation, and benefits. Additionally, the employer cannot, either directly or indirectly (for instance, by asking a former employer), seek this type of information about the applicant. The employer may consider prior salary information the applicant voluntarily and without prompting discloses, in setting pay. However, as noted in our earlier blog post, prior salary cannot, by itself, justify gender compensation disparity. For specific legal advice regarding gender equality regulations or any other employment issue, please contact Ad Astra for guidance.

LGBT Rights for Long-Term Care Facility Residents

Author: Trina Clayton

Along with SB 396 , another new law expanding transgender rights in California is SB 219 – the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Resident’s Bill of Rights – will go into effect on January 1, 2018. The catalyst for this bill comes from the unique needs of California’s senior LGBT population. Studies have indicated that many older LGBT adults do not have children and report a higher-than average incidence of poor physical health, which includes living with HIV or AIDS. As a result, many LGBT seniors have a heightened need for care when compared to seniors in California generally, but often lack the family support networks available to non-LGBT seniors and will likely rely more heavily on long-term care facilities.

SB 219 makes it unlawful for a facility or its staff to take certain actions because of a person’s actual, or perceived sexual orientation, gender identity, gender expression, or HIV status, including:

Denying admission to a long-term care facility,
Transferring or refusing to transfer a resident within a facility or to another facility;
Evicting or discharging a resident;
Willfully and repeatedly failing to use a resident’s preferred name or pronoun;
Prohibiting residents from wearing clothing that is allowed for any other resident; and
Restricting the right to associate with other residents.

For specific legal advice regarding gender identity/expression regulations or any other employment issue, please contact Ad Astra for guidance.

How to Enforce Settlement Agreements Under CCP §664.6

Author: Annie Smiddy

In the case of Sayta v. Chu, on November 29, 2017 the Court of Appeal of the State of California, First Appellate District, clarified the requirements for enforcing settlement agreements pursuant to California Code of Civil Procedure Section 664.6 (“Section 664.6”). Most settlement agreements in pending litigation include a provision that provides for enforcement of the agreement pursuant to Section 664.6. The statute allows the parties to take advantage of an expedited procedure to enforce the agreement without filing a separate lawsuit. It’s cheaper, easier, and fulfills the purpose of the agreement – to resolve the parties’ dispute.

However, Sayta confirmed that the expedited procedure of Section 664.6 is only available when the parties request the trial court retain jurisdiction, either in writing or orally before the court, while the case is still pending, before entry of dismissal. The appellant in Sayta relied on the provision in the confidential settlement agreement stating that the parties agreed to enforce the agreement pursuant to Section 664.6. The Court of Appeals determined that this confidential agreement did not constitute a “request” for the trial court to retain jurisdiction, as required by Section 664.6. “‘[T]he court lost subject matter jurisdiction when the parties filed a voluntary dismissal of the entire cause. Since subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel, the court cannot ‘retain’ jurisdiction it has lost.’” (Sayta, supra, citing Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206-207.)Read More >

Be Careful with Your Data

Author: Michael S. Dorsi

Recent revelations indicate that U.S. military or intelligence personnel (and maybe Russians too) using the popular run-tracking app, Strava, may have unintentionally divulged sensitive location information. While these runners may have turned on security features that anonymize their data, their anonymized data became part of Strava’s heat maps, which show popular running routes. A running route around what appears to be an abandoned airfield in the desert can give away that the airfield isn’t so abandoned.Read More >

What To Do When The ICE-Man Cometh

Author: Trina Clayton

Less than a month after federal immigration officials raided nearly 100 7-Eleven stores nationwide, U.S. Immigration and Customs Enforcement (ICE) agents conducted another sweep at the end of January – searching 77 businesses in the San Francisco and Sacramento areas in what was believed to be the largest localized raid since President Donald Trump took office. What’s more, it doesn’t look like this will be the end of the ICE raids. ICE acting director Thomas Homan has made a call for a “400 percent increase” in agency operations focusing on workplaces and, specifically, workplaces in California. In light of this governmental shift, what, exactly, is an employer supposed to do when ICE comes to call?

Fortunately, California employers have been provided slightly firmer ground on which to stand, based, in large part, by a recent law which went into effect January 1, 2018 – the Immigrant Worker Protection Act (AB 450).

AB 450’s provisions include the following: