Author: Wendy Hillger
In California, the new “Equal Restroom Access Act” requires single-user restrooms to be available to individuals of all genders. California employers who provide single-user restrooms must comply with the Act’s signage requirements no later than March 1st. If employers have questions about how this new law may impact them, please contact us.
Author: Geoffrey Murry
New case law has heightened the stakes in tree-related disputes among neighbors. In January 2017, the California Court of Appeal for the 2nd District in a case entitled Fulle v. Kanani ordered the trial court on remand to triple Encino homeowner Jeanette E. Fulle’s non-economic damages arising from intentional harm to trees on her property by Kaveh M. Kanani, a malicious neighbor. In this case, those non-economic damages arose from the homeowner’s “annoyance and discomfort” at the loss of the trees and the inconvenience arising from work at her property to remedy the damage. The case was one of first impression in California courts, addressing for the first time whether the tree-related damage multipliers in Code of Civil Procedure section 733 and Civil Code section 3346 applied just to a party’s “out of pocket” expenses arising from the harm to trees or also to intangible damages, including emotional distress damages. The court found that both categories of damages are subject to the multipliers.
Triple damages for willful injury to the trees of another have been allowed in the State of California since 1851. Conduct that is merely negligent that results in injury to another’s trees requires the award of double damages. At the time of enactment of Code of Civil Procedure section 733 and later, in 1872, when a similar provision was included in the state’s new Civil Code, the public policy supporting this extraordinary relief was primarily to discourage poaching from wooded lands over which one had no claim of right. In 2017, however, the more common application of these code sections is to remedy negligent or intentional acts that have the effect of killing, weakening or disfiguring trees that occupy residential real property.
Despite these changed circumstances – where the plaintiff now is not necessarily an owner of substantial acreage but rather an aggrieved residential homeowner and the defendant is not a poacher but rather either a malicious or clueless neighbor or a hapless laborer – the law remains in force and is employed frequently in neighbor litigation. The amounts at stake can be significant. In the Fulle v. Kanani case above, the damages awarded by the jury to the homeowner were $27,500 for damage to the trees, $20,000 for the cost to repair the harm caused, and $30,000 for the homeowner’s “annoyance and discomfort, loss of enjoyment of the real property, inconvenience, and emotional distress.” Because the neighbor cut the trees intentionally — here, to improve his view of the San Fernando Valley — all of those amounts are tripled in the award, increasing the basic award of $77,500 by $155,000.
There are several lessons present in this:
You can read the full text of Fulle v. Kanani (2d Dist. 2017) 7 Cal.App.5th 1305, here.
As a seasoned real estate litigator, Geoffrey Murry of Ad Astra Law Group has the experience to handle disputes among neighbors related to trees, as well as boundaries, easements, encroachments, or nuisance activity, amid a variety of other real estate disputes, all in a competent, cost-efficient and compassionate manner. You can contact the firm at 415-795-3579 to arrange an in-person meeting or telephone consultation to discuss your matter.
Author: Annie Smiddy
Annie recently presented with a panel of attorneys on “Why You Want to Know an Attorney Before You Need One.”
From large companies to individuals, litigation is a highly emotional experience for anyone involved. Choosing an attorney at that time can be difficult. At Ad Astra, we have experienced attorneys involved in a broad range of litigation, covering multiple practice areas. We also can help with minimizing the risk of litigation with our consultation services.
Annie and other local attorneys spoke to local entrepreneurs at the Hera Hub Business Accelerator Exposition on why it is a good idea to know an attorney before you need one. Topics included referral networks, litigation prevention, timing considerations in litigation, and the “ideal client” to keep costs down. There are many benefits to consulting with an attorney before a lawsuit is filed, so get to know us before you need us!
Author: Wendy Hillger
To help increase funding for affordable housing, Gov. Jerry Brown recently signed a bill (Senate Bill 2: “Building Homes and Jobs Act”) that places fees on some real estate transactions in the state of California. Effective in January 2018, a fee of $75 per single parcel of property will now apply for documents such as deeds and notices. The fees are capped at $225 per transaction. Recording of these documents for sales of residential and commercial property are specifically excluded [SB 2 bill text, section 2(19)].
The State Senate estimated these fees would bring the state between $200 to $300 million annually. The additional revenue from the fees will be a permanent source of funding to pay for affordable, low-income housing, of which lawmakers estimate 1.8 million units are needed in the state.
The full bill text can be read here:
Aurthor: Annie Smiddy
Hiring an unpaid intern is a risky endeavor. The law presumes anyone who “suffers or permits” someone to work has employed that person. Employees are protected by the wage and hour laws, and failing to abide by these laws can expose a business to substantial liability. California’s Department of Labor Standards and Enforcement (the agency that regulates wage and hour laws) adopted the federal approach to applying an exemption to the wage and hour laws for “interns.” The DLSE uses a six-factor test, and ALL factors must be met for a person to be considered a true intern under California law:
Comment: The DLSE commented that this element is satisfied when “an intern’s use of the employer’s computers, network systems, and tools to perform tasks” was “directly related to training and the educational and vocational objectives of the program.” Avoid assigning mundane or routine administrative tasks (such as running errands or making photocopies). Provide resources not necessarily available to the intern. Train, educate, supervise!
Comment: The internship should be “directly tied to the core components of the educations objectives” of the intern. Work with a university to provide school credit in exchange for the internship, and adhere to the university’s rules regarding school credit.
Comment: Avoid clerical work, or work that is typically assigned to employees. Make sure that the intern is being closely supervised by employees, and not working on independent tasks. However, some incidental work will not defeat the exemption “so long as such work does not unreasonably replace or impede the educational objectives for the intern and effectively displace regular workers.”
Comment: Benefit to the intern is not sufficient to maintain the intern exemption; there must also be no immediate benefit to the company. Keep track of the time spent supervising and training the intern. Avoid assigning work that is necessary to the business that would typically be rendered by an employee. While “[t]he performance of the described tasks performed by interns at the placement sites has some benefit to the placement business,” the DLSE requires that “any such limited benefit is counter-balanced by impediments to the employer’s operations in both time and economic costs in teaching the intern the activities, reviewing any work performed as well as immediate economic costs to the business in participating in the program.”
Comment: The internship cannot be an extended job interview. The exemption is not defeated by hiring the individual after the internship, but make sure to clearly state this in a written agreement between the parties prior to beginning the internship.
Comment: Again, written agreements are crucial!
Since the test is a multi-factored, factual analysis, there is inherent uncertainty in the ultimate determination of whether an intern is actually an employee. Under wage and hour laws, if the intern is misclassified, the company could be liable for damages and penalties, including, but not limited to, unpaid wages, liquidated damages for failing to pay minimum wage, unpaid overtime, pay statement penalties, premium pay for missed meal and rest periods, and waiting time penalties. To minimize exposure, consult with an attorney to ensure that your internship program meets the DLSE’s requirements, work with a university to provide school credit, provide a written agreement, and keep records of the project goals, training procedures, time you spend supervising and training, and time the intern spends performing the internship. Offer meal and rest periods, and understand that additional rules apply if hiring a minor.
Use the following link to see the DLSE’s opinion letter regarding the test of whether an intern is actually an employee: https://www.dir.ca.gov/dlse/opinions/2010-04-07.pdf
By: Michael S. Dorsi
The Washington Post published an article suggesting that the Twitter employee who deleted @realDonaldTrump might be criminally liable under the Computer Fraud and Abuse Act (“CFAA”).[fn1] The article, which draws on comments by Lawfare’s Benjamin Wittes and Chris Calabrese of the Center for Democracy and Technology, focuses on the misdemeanor access without authorization provision, 18 U.S.C. § 1030(a)(2)(C).[fn2] This provision attracts a lot of attention because it is very broad.[fn3]
The article focuses on whether the Twitter employee accessed without authorization, but then twists around to whether, while using that access, the employee did something he was not supposed to do. That is an invalid reading of the law, at least in the Ninth Circuit.[fn3] The access without authorization provision only criminalizes access, not what a person does once he or she has access. So the Twitter employee has nothing to fear, right? Wrong.
Just because the most notable part of the law is not implicated does not mean the law does not apply. A different provision, 18 U.S.C. § 1930(a)(5)(A), makes it a crime to “knowingly cause[] the transmission of a . . . command, and as a result of such conduct, intentionally cause[] damage without authorization, to a protected computer.” The story, as reported, indicates that the Twitter employee knowingly caused the transmission of a command that shut down @realDonaldTrump. The question is whether that shut down caused “damage” without authorization.
And a note of caution here: this offense does not require the defendant to access without authorization — it doesn’t require the defendant to access the system at all.[fn5] It just requires the defendant to lack authorization to cause damage.
What does it mean to cause damage? Unlike many words in the CFAA, damage actually has a definition in the law. “[T]he term ‘damage’ means any impairment to the integrity or availability of data, a program, a system, or information.”[fn6] Deleting a Twitter account probably impairs the availability of data, a program, a system, and information.
Does an 11-minute interruption qualify? One federal court in California held that changing someone else’s password and refusing to reveal it for two hours was insufficient under both the CFAA and its state-law analog.[fn7] Another case, in San Francisco, held that the CFAA and its state-law analog applied during “extended unavailability of the data.”[fn8] Maybe 11 minutes is not “extended unavailability,” but if I was the Twitter employee, I’d lawyer up.
And if I was his lawyer, I’d read the cases cited in this blog post. Free research. Because information wants to be free, or something like that.
P.S. The trial would probably have to be in San Francisco. Good luck asking Northern California jury to send someone to jail for shutting down Trump’s twitter.[fn9]
Footnotes
[fn1] 18 U.S.C. § 1030.
[fn2] Subsection (a)(2)(C), confers misdemeanor liability on any person who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.”
[fn3] See, e. g., United States v. Nosal, 676 F.3d 854, 862 (9th Cir. 2012) (Nosal I) (en banc), Michael S. Dorsi & Keenan W. Ng, Computer Criminal Intent, 51 U.S.F. L. Rev. 469, 503–506.
[fn4] Nosal I, supra, at 855.
[fn5] Cf. United States v. Nosal, 844 F.3d 1024, 1039 (9th Cir. 2016), cert. denied, No. 16-1344, 2017 WL 1807382 (U.S. Oct. 10, 2017) (Nosal II)
[fn6] 18 U.S.C. § 1030(e)(8)
[fn7] Welenco, Inc. v. Corbell, 126 F. Supp. 3d 1154, 1168 (E.D. Cal. 2015)
[fn8] NovelPoster v. Javitch Canfield Grp., 140 F. Supp. 3d 954, 961 (N.D. Cal. 2014). Your author argued the motion that resulted in this order in NovelPoster.
[fn9] See United States v. Auernheimer, 748 F.3d 525, 533 (3d Cir. 2014) (quoting United States v. Rodriguez–Moreno, 526 U.S. 275, 279 (1999)).
