When 21-year-old Jordan George of Eureka first saw the picture of “this Italian beauty” online, he knew, “She was the one, and only 9 hours away, in Fresno. It was love at first sight!”

Jordan imagined a future together, proudly showing her off to his friends, and together driving through one of California’s most beautiful regions.

And then one morning he could not awaken his love, and would soon be informed that her “dad,” Jasdeep Singh of Fresno, had neglected her terribly, not changing oil or performing other vital maintenance on the 2014 Maserati Ghibli he sold to this naive and trusting 21 year-old for $23,000.

As George still lives at home, his mom emailed me. A story of deceit became instantly clear. I have texts sent by Singh to George which are one of clearest examples of a seller misleading a buyer that I’ve ever seen. These texts reveal how Singh created an atmosphere of trust that George relied on.

‘Everything is perfect’

During their negotiations in the summer of 2020, Singh sent this text to George: “Everything is perfect. You don’t need to do anything.”

“A statement like that could constitute fraud or an express warranty if George had significant issues with the car shortly after taking possession, It would be good evidence the seller knew things were far from perfect at the time he made those statements,”  Loyola Law Professor Brian Hull says, adding:

“The seller would be liable to pay for repairs or refund the buyer’s money.”

Within weeks of taking possession of the vehicle, George was quoted repair charges of more than $15,000, from Maserati of Marin, based on a laundry list of failures by the seller to properly maintain the vehicle.

But Singh dug a much deeper hole for himself, as you will see.

‘Has the car passed smog?’

In California, and a few other states, the seller has the legal obligation of providing a smog certificate. There are some exceptions, none of which apply here. Also, if a car does not pass smog requirements, the buyer can’t register it.

On June 28, 2020 at 1:45 p.m., George texted Singh, “Has the car passed smog?”

Singh replies, “Yes, everything done. Registration update smog done.”

After the sale was completed, Singh promised to send George the smog certificate and then admitted that he never had one, claiming it wasn’t necessary. That was false.

“If an exception does not apply and a vehicle is sold without a valid smog certificate, then the sale is illegal, void, unenforceable, subject to rescission and a refund of the buyer’s money,” attorney William N. Blasser of Claremont observes.

“But if the seller falsely claims to have had the vehicle smogged, and the buyer relies on that representation, this is fraud and unless the deal is promptly unwound, punitive damages could be awarded in a trial.”

I would add, given the loss of $23,000, criminal prosecution could not be ruled out.

‘Tough!’

When George discovered what had happened, he offered to return the car for a refund, only to be told, in so many words, “Tough! You bought a used car.”

This led his mom, Amy, to retain Eureka attorney, Bill Bertain who sent Singh a letter asking that this sale be rescinded and the money returned to George.

And this is where the case gets even more interesting, adding one more reason the reputation of lawyers in America is so low.

Singh retained Attorney Jason Crockford of Madera who replied in a letter which effectively said, “Pound sand. The answer is no. Your client could have had the car examined by a mechanic but did not, and I strenuously deny Jasdeep breached his duty to provide a smog certificate.”

Of course, not having the car examined by a mechanic is irrelevant to the smog certificate requirements of California law.

I spoke with Crockford and heard him gasp when informed of the smog texts. To his credit, he no longer represents Singh.

After that rejection, Bertain filed suit and Singh went on to hire Fresno attorney Jaskaran Gill.

What should happen?

As basic fairness requires giving all parties a chance to explain themselves, I repeatedly requested an interview with Gill’s client and was refused.

Lawyers want to believe their clients. But exposed to the light of objectivity, when it becomes clear a client has not been truthful and there is no merit to their position, to continue unjustified, expensive litigation exposes both the attorney and client to court-imposed, costly penalties.

Our job should be to help resolve disputes, not drag them out. No lawyer should ever forget that.

Stay tuned.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“The fires and storms of 2022 was one of the most costly years to the insurance industry, leading to the failure of several companies across the country. Unlike, ‘What happens in Vegas stays in Vegas,’ where property insurance is concerned, what happens anywhere across the country has the potential to impact the rates that we all pay for coverage,” observes Los Angeles-based insurance broker Karl Susman.

A longtime friend of this column, Susman has been an insurance broker for over 30 years, holds a master’s degree in insurance management from Columbia University and serves as an expert witness in lawsuits involving coverage and agent mal-practice issues.

Rates Increasing, some Important Coverages being Trimmed

“Dennis, for your readers who will acquire either a new or renewed homeowners or a commercial policy in 2023, they have an important obligation to themselves: It is being aware of and understanding the coverages they are paying for. This is a time to carefully – not just read, but study – your insurance policy, as some coverages that were fairly automatic may no longer be included as standard in your policy.”

Susman listed several important coverages you need to considser:

(1) Guest Medical Coverage:

Both your homeowners and business policy absolutely should have Guest Medical No-Fault coverage. This will pay regardless of why a guest in your home or business gets hurt and incurs medical bills: No lawsuits, no questions asked, their bills are paid.

He underscores, “Take the maximum coverage amount you can obtain as the cost per year will be less than two drinks at Starbucks.”

(2) Event Insurance – Wedding Cancellation Coverage

What if I am planning on having a large event at my home or business?

“Event Insurance Coverage is a wise – and inexpensive investmen – $200-$300 that helps protect you from liability in case someone is injured or damages the venue’s property. It can also include liability for liquor should you be serving.

“Most insurers also offer cancellation coverage for weddings, which reimburses non-refundable lost deposits if you must cancel or postpone for reasons beyond your control, but not for ‘cold feet.’ Coverage for presents, photos, a wedding dress, tuxedos, and other items is also obtainable.”

(3) Do You Have Adequate Coverage for Jewelry?

“Unfortunately, most people are unaware that in most policies, jewelry is covered up to $1,500, no matter where it is located. However, it is possible to obtain a jewelry rider that covers, for example, expensive items in a safe deposit box that you take out for special occasions. It is extremely important to contact your agent or broker to let them know you’re taking them out of the vault to be worn.”

Also, from the tales of bewildered readers who have had the contents of their safe deposit box vanish, be aware that contents are not insured by the financial institution or FDIC. And your bank will disclaim all responsibility.

Drugs, Minors, Illegal Substances or Acts

“Keep in mind,” Susman notes, “That as a general rule, illegal substances or intentional acts of wrongdoing are not covered by insurance. If someone in your family is out ‘Breaking Bad’ do not expect your insurance company to step in and protect you.

“Marijuana is a drug, legal or not, and if you’re providing it to your guests, you’re assuming a risk that your insurance company will refuse coverage for if they get high, damage your things or leave and damage property of others or people are injured.

“If you are unsure about the legalities of ownership or use of personal firearms, check with a local office of the ATF – Alcohol, Tobacco, Firearms. Don’t look for insurance to bail you out of something that is illegal.”

Practical Suggestions to Avoid Cancellation

“To save on premiums, insurance is a product you must try to avoid using, and you do not want to be cancelled for something you failed to do which resulted in a huge claim. So, offer to pay for Uber or Lyft if your guests have had too much to drink.

“You don’t want anyone driving intoxicated for their safety and of others as well as the potential for you being held responsible if they became inebriated on your premises. It’s also a good idea and very considerate to have non-alcoholic beverages and mock-tails on hand for people to be able to stay sober while avoiding the social stigma of not drinking with the crowd.”

Susman was quick to underscore the importance of dietary restrictions. “If you are informed of peanut allergies and choose to ignore the warning, realize that a single peanut could send a guest into anaphylactic shock and a lawsuit is likely to result.”

Don’t Miss a Payment – Do What They Recommend

Most of us have been a day late or even missed a premium payment, received a lapse notice, quickly made it up and were reinstated. “Do NOT expect that to happen in 2023,” Susman warns. “Regardless of the reason you missed that payment.”

It is no secret that companies are trying to lower their exposure to risk, given the huge losses in 2022. Fewer payment plans are available, meaning you’ve got to write a large check at once versus making payments over time. So, if you can’t pay in full, for many people this means no insurance.

Additionally, as several of my readers have commented, letters giving them specific instructions on how to make a loss less likely are being received from their insurance carriers, often concerning trees and branches overhanging roofs.

“This increases the risk of a fire reaching your home as well as damage to the roof itself from the limbs and foliage. Therefore, see to it that this is remedied immediately or you risk cancellation of your policy.”

Susman’s advice? “Do what they say. It is common sense. Don’t be a cheapskate.”

Increase Your Limits

Susman concluded our interview with “peace of mind” advice.

“Given the increased costs of everything, it is important to have adequate limits. You can easily call your agent and say, ‘Increase my coverage since things are costing more money and taking longer to be repaired.’ It is the safest move you can make right now in world of insurance uncertainty.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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While most business owners are aware they have a legal duty to maintain their premises in a safe, hazard-free condition, some fail to understand or accept the fact that this includes trees on the property.

Trees provide shade, are good for the environment, but unless properly maintained, some are killers, notably eucalyptus.
So, what would a business owner face if one caused damage to property or injury? Would their insurance always cover the claim? I’ll answer those questions in a moment, but first meet “Eric” who lives under the threat of a neighbor’s massive eucalyptus tree crashing onto his office or into a power transformer just feet from the tree, potentially causing a fire.

“Our small accounting office is next to an auto body-repair shop that is on land dotted with eucalyptus trees. Some are dead and one scares the living daylights out of me, as branches are in electrical wires that run from the power pole to both of our offices.

“The tree is massive, it is taller than the pole! I have repeatedly phoned and warned my neighbor that the tree is dangerous and will kill someone if it falls, or start a fire, setting the neighborhood a blaze, but he just ignores me.”

“What should I do at this point?”

Notice – Key to Establishing Liability

San Diego-based attorney Evan W. Walker has had a great deal of experience with these types of cases. He began his analysis with an explanation of why eucalyptus trees are so dangerous.

“Giant eucalyptus drop heavy branches, earning them the nickname ‘Widow Makers.’ They are prone to falling because their shallow, spreading root system does a poor job of steadying the tree. Add to that high winds from a storm, and you’ve got a recipe for trouble with a eucalyptus that has not been properly maintained,” he points out.

I asked Walker what the law requires property owners to do in the situation that Eric is describing.

“Owners and occupiers of land have a legal duty to not expose others to an unreasonable risk of harm, and specifically, a refusal or failure to remove a dangerous condition. Resulting personal injury or property damage can result in an insurance claim, being sued for negligence or for maintaining a nuisance.”

Walker stressed the important of a key factor which must be proven before Eric’s neighbor–or his insurance carrier–would be liable for damages if his tree caused property damage or injury: Notice.

“Two things come to mind, and one is establishing that the tree really is dangerous, the second, providing notice to the neighbor.

“This is the time to cross the t’s and dot the i’s. You do this by having a licensed arborist inspect the tree and write a report. The cost is reasonable and is important in the event the tree does come down and the neighbor denies having any idea of its danger.

“Your reader states that he ‘repeatedly’ notified his neighbor of the danger, but does not say how he communicated that information. Was it simply by placing phone calls, or did he provide written notice?”

Walker then listed the ways that actual written notice should be given–or at least, attempted–to be given to the owner or occupier of that land:

(1) Send a certified letter, which requires a signature.

(2) Politely state in the letter that you are putting your neighbor on notice that one of his trees is dangerous and describe the issues as clearly as you can.

(3) Enclose a copy of the arborist’s report.

(4) Ask that the recommendations made by the arborist are followed immediately.

And just what happens if Eric’s neighbor refuses to sign for the certified letter?

“This will come back to him from the post office, showing the refusal and could be introduced in court if the matter went that far. But if that happened, it would be worth hiring a process server to hand deliver the letter, and Eric would receive a proof of service.”

Could the Tree Owner’s Insurance Refuse to Pay the Claim?

“Both commercial and homeowners insurance is intended to compensate for property damage or injury caused by negligence, but not for intentional acts.

“While it would be extremely rare for a carrier to deny a claim for damages if the tree fell, a refusal to remedy a known risk of harm as Eric faces could lead to his neighbor’s insurance company to deny coverage on a theory of intentional, reckless behavior. It isn’t likely, but could happen,” Walker concludes.

The take-away for both business and homeowners is simple; good neighbors trim or remove dangerous trees. It’s more than treating others as you would want to be treated. It’s the law.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Today’s story will be of special interest to anyone who has been fired and encouraged to sue for wrongful termination.

“In our sue-happy society, where the boss is always wrong and employees think they have a right to a job — which they do not — few can even remotely consider that, just maybe, they deserved to be fired. Many are told that if it happens, they are a victim of wrongful termination and should sue for damages,” says Southern California employment attorney Jay Rosenlieb.

“In reality, ‘wrongful termination’ is being fired for an illegal reason, such as discrimination, violation of labor laws, retaliation, etc. And, yes, there are a small number of horrible employers who violate these laws and merit being sued, big-time. So often, angry employees go on the internet and find YouTube videos from lawyers all over the country begging to take their cases. The result is grief for the employee, who is often lied to about having a good case and endures massive amounts of wasted time over something that isn’t there. Employers become victims of legalized extortion, paying money that isn’t owed just to end the litigation.”

This woman was told she had a great case

Sarah Dunn was fired from her job as an overnight crew member at a California fitness center and phoned a Los Angeles law firm that advertises online: “We are wrongful termination lawyers and protect employee rights — no recovery, no fee.”

“I told one of their lawyers that, basically, my relationship with a new manager soured, and we just could not get along,” Dunn says. “(The lawyer) said, ‘This is a good case of wrongful termination.’”

Of course, “not getting along” isn’t a basis for a wrongful-termination claim, but that small detail did not matter to this law firm.

Dunn docusigned the retainer emailed to her, but in violation of California bar rules, the law firm failed to send her a copy of the signed agreement.

Had she read the firm’s many negative Yelp reviews — which used words such as “cons,” “predatory,” “scam” and “absolute trash” and also included, “If you’re looking for unprofessional representation, you’ve found it!” — this story would never have been written.

What does ‘no recovery, no fee’ really mean?

So-called no-recovery, no-fee terms are used in contingent-fee matters — such as auto accidents — and expressed as a percentage, such as 25% to 50%. But the firm’s retainer does not give a percentage. Rather, it states, “We bill on an hourly basis — $150 to $695 — and do not send out monthly billing statements.”

What? No monthly billings? No kidding.

So clients have no way of knowing how much their attorney fees will be as these cases progress — or if it is worth even pursuing the matter — because the firm hides its fees until the very end, violating California State Bar rules that require monthly bills to be sent to clients when fees are on an hourly basis.

Dunn didn’t know what she would be billed until after the case was over. Plus, the firm charged her to prepare the invoice — almost $600, at the attorney’s hourly rate, which is totally wrong. This is not only against bar rules, but the invoice was filled with double billing and outright bill padding. How much was the bill? Over $7,000! Though the firm magnanimously reduced that to $5,000.

She asked the firm to refund the settlement to her employer

Until Dunn met with our office, she had been led to believe that hers was a good case of wrongful termination, which was settled — I would use the term “extorted” — for $10,000 from her employer. The law firm kept half.

Because Dunn has a conscience, she wrote to her attorney, stating, “You fraudulently misled me into retaining your firm. But there was no wrongful termination in the legal sense. You caused my former employer to waste time and attorney fees based on your fraud. I want you to refund that money to them.”

The attorney hasn’t replied, and I’m sure he won’t. But this gets even worse. The settlement agreement has an NDA, also known as a nondisclosure agreement, that prevents Dunn from talking with just about anyone about this case or their firm.

But employees are free under California law and NLRB regulations to discuss any aspect of their employment or termination outside of protected things such as trade secrets. So, this law firm tries to scare its own clients to prevent them from discussing their cases with just about anyone.

And she filed a complaint with the state bar

Dunn filed a formal complaint about the attorney with the California State Bar. They slapped the guy on the wrist, putting him in a disciplinary program and admonishing him to be a “good lawyer” in the future. Also, these actions do not appear on his State Bar page, so potential clients are not warned of his ethics issues.

Disgusted, I wrote to the bar’s trial counsel, “Remember Tom Girardi? He’s the lawyer whom you guys enabled to embezzle millions of dollars from clients to fund his lifestyle as featured on The Real Housewives of Beverly Hills. Well, you’ve got something similar here and need to go in there, grab their files and see how much clients have been ripped off!”

The bar hasn’t replied, and I doubt it will.

How to not get taken by a lawyer or law firm

Here’s how you can avoid getting into Dunn’s situation with an unethical lawyer or law firm:

Before hiring any lawyer or law firm, use Google or any research method to learn as much as possible about them. Look them up on their state bar website, which should show disciplinary actions.

When reading reviews, focus more on the negative ones than the glowing, positive comments. Look for statements suggesting a failure to return phone calls, withholding settlement money, outright lying or making guarantees of an outcome (it is illegal for lawyers and doctors to guarantee results).

If it is in the area of employment law, educate yourself. Look up the definition of what the lawyer says you could sue for. Ask yourself if the facts of your case match the legal definition. If they do not, then consider the real possibility that you are being lied to.

It would be nice if the public could always trust the legal profession. Sadly, that is not the case today. “Buyer beware” applies just as much to hiring an attorney as in buying a used car.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Do You Think You Have a Great Wrongful Termination Lawsuit? appeared first on Dennis Beaver.

If you are a landlord–or plan to buy rental property–our story should scare you more than just a little, as the last thing you want is to be sued for a violation of the Americans With Disability Act which no doubt you’ve heard of.

And here’s a fact situation that is guaranteed to raise your blood pressure.

You’ve heard the term “Drive By Shooting,” where a car, building or person, is shot at by someone in a moving vehicle, making it often difficult to capture the perpetrator.

But have you ever heard of a “Drive By Lawsuit?”

Sacramento California attorney Cris Vaughan can tell you all about these suits which his law firm defends throughout the state.

“A ‘Drive-By’ lawsuit claims violations of the ADA by a person who does nothing more than drive by business without ever attempting to become a customer and there is no evidence of the individual ever being in their business.

“Business owners must hire an attorney to defend themselves where small and easily curable violations of ADA access requirements on the outside of their business that can be seen when driving by the property.

“Three law firms with less than twenty plaintiffs file the majority of the ADA cases in federal court. Twenty or more cases a month are filed using a single individual. California has a financial reward for the person who brings an ADA lawsuit, even for minor or purely technical violations, like a parking space being an inch too narrow.” Vaughan stated.

At least one individual law firm in California files more than one hundred ADA lawsuits a month using virtually identical language, changing little more than the name and address of the business in a boiler plate complaint. “In many cases, the lawsuit targets a small immigrant or minority owned business.”

Pay Up Now or Pay Thousands to a Lawyer Defending You

“The business either pays the settlement demand– frequently over $10,000–or spends thousands more fighting the lawsuit, or shutting down the business” Vaughan stated in frustration.

Unfortunately, the shakedown usually works, and it did with one of my clients, trying to sell their small motel. We were one of many victims of this incredible abuse of the well-intentioned ADA, until the Federal Courts in California and some other states put a stop to this thievery.

Never Even Set Foot on the Property

An Arizona lawyer and his wheelchair-bound client have used Google Earth to study swimming pool facilities at hotels throughout California.

The ADA requires hotels which have a swimming pool to be accessible to all guests. But how can a guest who is confined to a wheelchair get into a swimming pool?

The ADA requires hotels to install a pool lift to provide access to wheel-chair bound patrons. These lifts are easily visible on Google Earth.

Often city and county building code officers do not inform the owners of this requirement. In my town, they specifically told hotel owners that a lift was not necessary. That was bad, really bad advice.

If a wheelchair bound person checks into or tries to check into a hotel and discovers no lift at the pool, they have suffered a harm according to the ADA. Failure to have a lift is a clear violation of ADA access requirements and hotel guests would be well within their rights to file suit.

“But in these lawsuit, the plaintiff lived in Arizona, never left her home, but claimed an ADA violation because the hotel she saw on Google Earth lacked a chairlift! Her lawyer filed dozens of these questionable lawsuits in California Federal Courts against hotels all over the state!” Vaughan points out.

A Gun to Your Head

“Clients tell me ‘It feels like there’s a gun to your head. ‘Vaughan stated, adding “Many hotels simply settled these suits, paying $5,000 or more to the Arizona lawyer. But then a few attorneys who represented major hotels asked the Courts to dismiss these suits on the grounds of what is called Standing.

“That means, the plaintiff could not show that the lack of a chairlift actually harmed her, as she was never at the hotel, or in California, for that matter. But rejection of these lawsuits by the court came after many hotels just paid up.” he points out, adding, “These types of lawsuits are still going on today,” he concluded.

There is a lot more to the ADA, and next time, with Cris Vaughan we will look at common myths that could cost you big time. His website is adalegaldefense.com and he’s also on You Tube. By spending time there you will learn a lot and just maybe, keep yourself out of ADA lawsuit land.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Often homeowners and commercial property owners do not understand the importance of maintaining vegetation — primarily trees — and this is especially important if they have neighbors whose homes or offices could be damaged by falling branches or the trees themselves,” observes La Jolla attorney Evan Walker, whose law practice concentrates on property damage and personal injury.

“Often, when buying a house, the last thing considered is the added cost of yard maintenance. With the price of homes off the charts, few real estate agents will tell buyers, ‘And don’t forget that you will need to maintain these trees and the yearly costs will be significant.’

And how significant is significant?

“Depending upon the size of the property, number and types of trees, and proximity to adjoining homes or other structures, the yearly or bi-yearly expense of hiring tree trimmers can run into the thousands of dollars, but that’s often not the more critical problem,” Walker points out.

“It is liability. Negligently failing to maintain your trees in a safe condition invites litigation when, as a direct result of this negligence or willful behavior, property damage, personal injury or death result,” he underscores.

Most lawyers recall cases discussed in law school under the heading, “Owners and Occupiers of Land,” where jury awards have been through the roof when it was shown that the owners had actual notice of the danger their trees posed to neighbors but chose to ignore it.

When Your Neighbors are Misers

This column has heard from so many readers over the years who live in fear of their neighbor’s trees falling. Most had already hired state certified arborists whose reports warned of an imminent danger of major property damage or injury certain to occur, and a copy of the report given to the neighbor.

Often I phoned these people, urging them to do the right thing and have the trees trimmed or removed, only to hear “No! I’m not paying for it and don’t care what the arborist says. Tell your reader to pay for the job!”

In several instances, within days, what was predicted to happen did. Resulting litigation frequently revealed these people to have the word miser stamped on their foreheads, yards overgrown with vegetation, home in a state of disrepair and bank accounts flush with thousands of dollars.

I have also found some of my readers to be just as miserly as their cheapskate neighbor, as an email from a New Jersey reader made clear.

“My name is Michele. I have dead trees right behind my fence and am being ignored by the owners. I need help and am at the point I don’t know where to turn. I’m not getting much help from my Township. Can you help me?”

So, I phoned Michele and learned:

(1) She has a report from an arborist warning, “These trees are as tall as a phone pole and are an imminent threat of falling on her house.”

(2) The neighbor was given a copy of the report, initially promised to have the trees removed, and then refused.

(3) It will cost $1,700 for the job.

(4) Her local government officials have turned a blind eye.

(5) Her source of income? “I am extremely comfortable with dividends from my investments.”

(6) Has she consulted with an attorney for a letter demanding that the dangerous condition be immediately remedied or suit will follow? “No, they charge too much!”

Evan’s Recommendations

“If it were me, I would alert my city or county authorities, law enforcement, code enforcement and elected representative. As it is a human interest story, local television and newspaper should be notified. Also, my own homeowner’s insurance company, putting them on notice of this potential claim as that is my obligation under the policy.”

When Michele told me that a consultation with a lawyer costs too much — in view of her clearly admitting having the financial means and obvious need for legal help — I said:

“You are being unreasonable, unfair to yourself and are exposing friends and family who visit you to a known risk of injury – and then you would be sued!

“Receiving your lawyer’s letter, these cheapskate neighbors will realize that you have the ability to drag them into court, I would expect them to react in a very different way, so after we speak, schedule a consultation with an attorney, please!

Necessity

I asked Evan, “What if, out of a reasonable fear the trees were on the verge of falling, Michele hires tree trimmers and without permission they enter the property, rendering the situation safe and they sue her for trespass. What would her defense be?”

“Her lawyer would raise the Defense of Necessity, explaining to a judge or jury that the law of trespass recognizes times when, to preserve the greater good, it is permissible — in fact necessary — to trespass. We call this an affirmative defense which says, “Yes, I did trespass but was justified in doing so as this was an emergency.”

Evan concluded our interview with two sayings, one 500 years old and from England — “Do not be penny wise and pound foolish.” — and the other credited to Benjamin Franklin:

“An ounce of prevention is worth a pound of cure.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Wanting to learn the ropes from our employer and go out on our own is something that many employees consider,” observes Southern California Business attorney Glen Dickinson.

Dickinson adds, “And if you go about it the right way, a new, exciting and successful chapter can open in your life. That is the beauty of our American system of competition. But you’ve got to be aware of what not to do.”

And that’s our focus in today’s story – leaving an employer, going out on your own, and the consequences of doing it all wrong.

I asked Dickinson to list and explain the things that can result in a lawsuit. So, if you or someone you know is considering leaving your current employer and setting up your own shop, his advice will reduce the chances of winding up on the wrong side of a lawsuit.

(1) Be Sneaky! Before informing your employer that you are leaving, tell your customers and ask them to give you their next order because, “”I’ll give you a much better price.”

Employees owe a duty of loyalty to their employer, so if you are sneaky and customers follow you now, you’ve got a legal problem as this is not only a breach of that duty, but can be seen as theft.

However, you can leave and not be sneaky by respecting the correct sequence of who you tell, beginning with your employer. Then, you can tell customers and fellow employees.

There is no particular order to follow, but in your business life, you’ve got to start with the employer.

(2) Aggressively go after and target customers of your former employer, solicit their business, and think of them as “your” customers rather than of your former employer.

This is false reasoning as the customer isn’t yours, rather, has a legal relationship with your former employer.

The rule in many states is that you are free to send an announcement of your new employment but you cannot send a solicitation. An announcement is bare bones – as of (date) this is my new contact information. However, a solicitation is anything that invites placing an order.

However, if your new employer has a pre-existing mailing list that is independent of any information they acquired from you, they can send out a solicitation to anyone on their data base, as well as an announcement that you are now working for them. If the customer list happens to include customers of your former employer, that’s ok.

(3) Take stuff with you when you leave! “The empty pockets rule.”

You want to empty out everything you obtained from your former employer, whether it is physical paper, emails, contacts on your phone, files or folders on your computer or laptop. You need to sterilize yourself of any information you have received.

You must purge your employer’s information on your own phone. You must be sure that you do not carry information that belongs to the former employer with you.

(4) Look Suspicions – Not Transparent.

One of the great drivers of litigation is the unknown. If your former employer suspects that you are up to no good – doing unlawful things – and they can’t find out what you are really doing, then they are more likely to file a lawsuit because they are suspicious.

So, be transparent: If you get a demand letter, or a cease and desist letter, it gives you the opportunity to respond in a professional, thorough and transparent way. This is where hiring a lawyer can be extremely important.

When you get one of these nasty grams from a former employer and you hire a lawyer to respond, it sends two very clear messages: First, “I am taking this seriously.” Second, it tells them you have informed yourself on the requirements of the law.

This is a specialty area of the law with its own unique features and highly particular rules.

So a general business attorney is not the best person to speak to. You need a litigator experienced in trade secrets and intellectual property.

Getting a letter from lawyer who knows what they are talking about, says that the former employee is getting good advice.

An Ounce of Prevention

Dickinson concluded our interview by recommending something that can be tremendously valuable if problems arise, and that is “Before leaving, meeting with a business lawyer familiar with these areas of the law and walking through the does and don’ts.

“It’s not guaranteed to keep you out of a lawsuit, but it makes one more defensible, as you can say, ‘I sought legal counsel, I tried to do it the right way.’ These lawsuits tend to end quickly on reasonable terms.”

After 30 years as a litigator, Dickinson’s focus, “Is to keep people out of court, and I often tell clients: ‘The secret of happiness is not winning lawsuits! The secret of happiness is staying out of lawsuits!’”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post How to leave your employer, go out on your own and get sued! appeared first on Dennis Beaver.

My paralegal, Anne, buzzed me. “You have a couple on the phone who have Covid-19. They are very upset with their family doctor and want to talk with you about a possible lawsuit for malpractice.”

Now, this sounded interesting.

Just diagnosed with COVID-19 — doctor yelled at them

“Mr. Beaver, our family was just diagnosed with COVID-19, and fortunately no one is sick enough to go to the hospital, but we feel very disrespected by how our family doctor reacted.”

I wondered how long have they gone to this doctor, and why they feel so “disrespected.”

“We have been his patients for several years and never had a problem until now. But when he called us and confirmed that we all had COVID-19, it is what he said that hurt our feelings terribly. He was so angry! We recorded it. (They played the recording.)

“What’s wrong with you all? I told you months ago that you were dangerously obese and that you were not taking your blood pressure medication as prescribed. Don’t you watch TV? Almost all of the faces of the people who died from COVID-19 who you see on the evening news are horribly obese — and you are too, all of you, mom, dad and your four young kids! Don’t you get it! You are sentencing yourselves to death because of being morbidly obese!”

“Mr. Beaver, we aren’t that much overweight and our kids are otherwise healthy, if a bit big.”

Was the doctor correct? Were they all obese? Dr. Skype would answer that question, and so I asked–and the family agreed–to do a Skype video chat. As soon as their webcam was active, it was clear to me that I was looking at an entire family of morbidly obese people in complete denial of their own health status.

What immediately came to mind was what their doctor had told them about the faces of people who died from COVID-19. Almost all were obese.

The message of obesity, COVID-19 and risk of death is not getting Through

I asked if they would call the doctor’s office and authorize him to discuss this with me, and they agreed.  Within minutes I was speaking with a physician I can only described as caring and frustrated who I will call “Dr. Jim.”

“Dennis, obviously the national message is not getting through about obesity and COVID-19. The CDC has stated that obesity was as great a risk factor or even greater as having a suppressed immune system or chronic lung or kidney disease. They also said risk starts with a BMI of 30 and 40% of Americans have a BMI well over 30. At these numbers, there is a high risk of death, more so than related risk factors such as diabetes or hypertension.

“People with severe obesity are about twice as likely to die from COVID-19 as those who are not obese, regardless of race or ethnicity. The risk rises with the degree of obesity. The bigger a person, the higher their risk of a COVID-19 death.

“But this is not a new discovery, as during the 2009 H1N1 influenza pandemic, and flu pandemics in the 1950’s and 1960’s, we found that obese people were at a higher risk of dying.

“There are many reasons why obesity is such a risk factor, and one explanation is that their levels of the hormone leptin are always high, which reduces the immune response to a Covid-19 infection. Leptin is produced by fat cells, and the more fat a person has, the more leptin circulates in their body.

Did he yell at his patients?

“Doc, your patients feel ‘disrespected’ because they claim you yelled at them for not doing a thing about their weight. So, what happened?”

“They are correct. I did yell at them out of total frustration! Months ago when it was clear we were facing a pandemic, I contacted all my obese patients and begged them to lose weight! I explained the risks. No one can justify weighting 350 pounds! We are killing ourselves in this country! Yes, I do get frustrated when these same people return to the office and have done nothing to address their weight issues. And I am not apologizing. I just hope that I finally got their attention.”

Does a poor bedside manner justify a malpractice lawsuit?

Courts have held that a poor bedside manner is not medical malpractice. If a health care provider’s actions do not result in real injury, it cannot be considered medical malpractice.

I explained that to my readers, telling them, “Dr. Jim was trying to save your lives. Instead of being angry, realize that he cares enough to hopefully make you think. He deserves your appreciation, not a lawsuit.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“When we read about mayors, CEOs of major corporations and ministers of megachurches getting in conflict-of-interest financial or personal trouble, history has proven there is often a common denominator,” observes attorney Steven Kelly, a former prosecutor and associate commissioner at the New York City Department of Consumer and Worker Protection.

They probably failed to seek the advice of outside counsel. “From small, family-run businesses to massive corporations,” Kelly adds, “we repeatedly see the one theme that proves how beneficial it would have been to seek the advice of outside counsel and obtain clinically objective guidance that a good, truly independent attorney can provide.”

And why is outside counsel able to provide such objective advice? “Because he or she has not become intoxicated by the power that comes from being too close or dependent on the client for their job,” Kelly says. “We think of our attorney as a trusted adviser, someone who will not simply interpret or explain the law, draft contracts or other legal documents, but rather, who is familiar enough with you to understand what kind of activity or behavior not only poses a legal risk, but a reputational risk. You need a lawyer who can look you in the eye, no matter how powerful you are or what position you hold and tell you, ‘No, don’t do this.’”

Outside counsel also has the advantage of their prospects not being tied to yours — giving you bad news doesn’t affect their livelihood. “An attorney who works in-house or within that inner circle of people who have worked alongside you historically and risen with you to that position of power may have their own career and wealth prospects tied to yours,” Kelly notes. “So, arguably improper, unethical or illegal activity may exist and will be overlooked due to an incentive to appease and agree. But outside counsel has no such incentive. They may risk losing you as a client, but they have other clients and, as representatives of their firm, understand that it isn’t just your reputation that is at risk, it’s theirs. This helps them provide much more clear-eyed, clinically objective advice.”

When the boss blames the in-house attorney

When things go south for an elected official, corporate executive or other powerful person, their worst enemy can be the in-house lawyer. For example, a mayor accused of abuse of his position for personal financial gain might say, “I ran this by my advisers, including some attorneys, and no one told me it was wrong.”

Kelly says that “inner circle” attorney is in a very difficult position: “That lawyer is of course bound by rules of professional conduct that prohibit disclosing communications with their client. What we are seeing now in New York City are advisers who surround the mayor — many who are attorneys themselves — trying to get ahead of the indictments and resulting scandal by resigning, or risking their own legal reputations and career prospects going forward. Additionally, because they are attorneys, they risk being brought up on violations by their state bar, facing a fine or losing their license. And when the lawyer is believed to be involved in the criminal activity, this may destroy the attorney-client privilege and open the door to damning evidence against the boss, as lawyers can defend themselves if accused of malpractice.”

A recommendation to seek the advice of outside counsel would be better, Kelly points out: “That lawyer would have been in a far better position if the employer were told, ‘I think it is best if you get a second opinion on this.’”

Advice to employees who know what the boss is doing is wrong

I asked Kelly what a caring employee should do — who should they speak to — when they know that the boss is doing bad stuff. He provided these approaches:

Realize that silence is not an option. When you are aware of unethical, illegal or any type of inappropriate behavior being committed by the president, CEO, executive director or other higher-ups of an organization, you should not remain silent about it, regardless of where you are on the organizational chart.

Does the organization have a reporting mechanism? Larger companies usually have guidance in their employee handbooks that says, “If you are aware of potentially inappropriate, unethical or illegal behavior or activity, these are the steps that you follow.” There may be a separate office within HR or the general counsel’s office with whom you can speak.

Best practice is to not just rely on the reporting mechanism that exists within the organization, but to also memorialize the steps you took to report it. This can protect you from retaliation, because you can demonstrate that you reported some type of nefarious activity before they fired you or otherwise retaliated.

If there is no such reporting mechanism, consult with an attorney and rely on the advice of counsel as to the next steps to take, such as reporting to a regulatory agency or, if you’re fired, bringing a wrongful termination suit.

Concluding our interview, Kelly cautions, “Eventually, (the questionable activity) will come out of the shadows,” putting your own reputation at risk.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post One Cure for Legal Headaches: The Advice of Outside Counsel appeared first on Dennis Beaver.

“Our local newspaper wrote a nice article about me obtaining my license as an architect. This led to being contacted by ‘Diane,’who wanted to do a re-model and expansion of her law office. She was my first client,” “Ed’s” email began.

“Before being paid for my work, at her request, I gave her the plans along with my bill of $22,000. She promised to immediately deliver a check, but it has been six months and nothing! She refuses to take my calls. I confess to being very trusting and a bit naive. We had no written contract.

“Every lawyer I have spoken to refuses to take my case, telling me that Diane is a known dead-beat. Also, the amount is too small to go to court over as it would be far too expensive. Mr. Beaver, this is now a matter of principal and I don’t care about the money. Why can’t I get anyone to take my case?”

Cost-benefit analysis – does it make sense to file a lawsuit?

I ran architect Ed’s situation by San Francisco-based attorney Matthew S. Kenefick whose practice includes creditors’ rights.

“As attorney fees run hundreds of dollars an hour,” he notes, “ethical lawyers have a duty of not taking advantage of a client’s anger. Because the legal process is expensive, you’ve got to answer this question: ‘Does it make sense to prosecute this lawsuit on a cost-benefit analysis?’

“Given the relatively small amount that Ed is owed + the reality of dealing with a known dead-beat, he can’t justify paying a lawyer on an hourly basis to sue Diane, and I doubt that any lawyer would take this on a contingency fee basis. So his better remedy is just to turn the account over to a collection agency.”

I asked Kenefick what he tells clients, like Ed, who say, ‘This is a matter of principal?’

“Your anger will subside; my bill will remain. You are not going to erase the memory of racking up a big legal bill, especially if you win and then are unable to collect on the judgment.”

Cost factors to weigh

Kenefick describes these cost factors to consider before filing suit:

1. Where and how is this dispute going to be decided? Will it be through arbitration or mediation, both of which are costly? The forum–federal or state court–have very different and often costly procedures to follow.

2. Is there a clause in the contract dictating where in the country the matter must be heard? In many states cases drag on for years, adding to the expense.

3. Will this case be decided by a jury or a judge?

4. Does this controversy have a high enough dollar amount to make an alternative fee agreement attractive to a lawyer, such as half the fee on an hourly basis and half on a contingency? Or, perhaps entirely on a contingency, so that only if the case is won the lawyer receives attorney fees? Can you agree on a fee cap so that you will not pay beyond a certain dollar amount?

5. Are you subject to a counter claim or a set off?

6. Every lawsuit costs time and often has a huge emotional toll. Judges and juries do not always get things right. You should have won, but lose. How well could you live with that?

Benefit factors to consider

Kenefick lists these factors which must also be part of your decision to file suit:

1. The most important consideration is being able to collect on a judgment if you win.

2. Is this a going concern that has receivables, or are they out of business with little chance of paying?

3. Are there going to be assets that you can enforce against such as personal property? Are there guarantors or other parties contractually liable?

4. Is this a claim that could have insurance coverage?

5. Are there competing creditors who may be secured?

6. Does the contract have a limitation of liability clause?

7. Is the recovery taxable? Is it compensatory versus income?

8. Is there a clause in the contract stating that the winning party’s attorney fees are added to the amount of the judgment?

9. Can I deduct this as a business, tax loss or theft claim?

And when money is not the issue?

Kenefick concluded our chat explaining why there can be reasons to file a suit when actually collecting on a judgment is not the issue:

“Combating reputational harm and clearing your name can justify a lawsuit. Also, you may need to create a precedent to not be seen as a paper tiger, and are unafraid to file suit if you are not paid.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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