Friday, June 19, 2015

Uber Accidents After the Recent California Labor Commission Ruling

My wife and I use Uber all of the time. It's great. One does not have to worry about parking or drinking and driving. The service is convenient and easy to use. Ride-sharing technology has been great for consumers.

However, what happens when passengers are injured while riding in an Uber car? With a recent ruling from the California Labor Commission, plaintiffs may benefit. The California Labor Commission found that Uber drivers are employees, not independent contractors. An employee classification for its drivers will mean a number of different things for Uber, including how it deals with injury accident claims.

Under California law, a legal doctrine called "Respondeat Superior" (I know, lawyers love Latin) holds employers responsible for the negligent acts of their employees. Given certain elements must be met, i.e. the Uber driver must have been working at the time of the accident, nevertheless, this ruling will allow injured parties to proceed against Uber directly.

Further, Uber will have to carry $1 million in liability insurance for its drivers. The insurance policy will be excess to the driver, meaning that the driver's own automobile insurance will be primary in the event of a claim. An injured party will first have to recover the policy limit from the Uber driver before he or she can recover from the Uber $1 million policy (not all injuries are serious enough to warrant a claim against an excess insurance policy).

Catastrophic accidents routinely pose difficulties for plaintiffs because there are insufficient policy limits. For example, an injured party may lose the use of his or her legs, but only be able to pursue the defendant's liability insurance, which has a limit of $15,000. In the described hypothetical, the injured party will have to bear great costs, including all disability bills. Should a plaintiff be involved in a catastrophic accident with Uber, this ruling will ensure larger limits, and potentially provide greater protections for the plaintiff.

Finally, the issue of agency, or independent contractor v. employee, is still is being litigated. Uber has pending lawsuits with both state and federal courts in California. While the Labor Commission is a set back for Uber, and a win for consumers, nothing is certain, or settled, at this point.

Thursday, June 4, 2015

Defending Against a Criminal Threats PC 422 Charge

Anyone familiar with the criminal justice system knows that it is not perfect. Any institution cannot be perfect when the institution is comprised of imperfect human beings. Nonetheless, there are commonplace problems that should be addressed. Until then, a defendant should be aware of how to successfully navigate a criminal threats charge when the facts are scant to support a conviction.

California Penal Code section 422 defines "criminal threats" as willfully threatening to kill or severely harm a victim. It is a "wobbler" crime, meaning that it can be charged as a misdemeanor or felony. However, prosecutors will routinely charge it as a felony to gain an advantage in the plea bargaining stage of the case.

Like with any other crime, the prosecution has to prove each element of the alleged violation beyond a reasonable doubt. The elements of Pen. Code section 422 show that it may be difficult to prove each element beyond a reasonable doubt when there exist facts favorable for the defendant. Let me explain, by first stating each element of the crime.

  • Defendant willfully threatened to unlawfully kill or cause great bodily injury (GBI) to another person or person's immediate family (from here on out we will exclude the section regarding a person's family)
  • Defendant made the threat orally, in writing, or by electronic communication device
  • Defendant intended that his or her statement be understood by the person as a threat
  • The threat was so clear, immediate, unconditional, and specific, that it communicated to the person being threatened a serious intention and the immediate prospect that the threat would be carried out 
  • The threat actually caused the person to be in sustained fear for his or her own safety and
  • The threatened person's fear was reasonable under the circumstances.
After an examination of the elements, one should be able to see how a criminal threats charge could be effectively defended against. Not all perceived "threats" fall under the purview of PC section 422.

For example, a threat made in jest between two friends would not be a chargeable offense. A conditional threat, as well, could not lead to a conviction: "I will hurt you if you continue to date that person..."

Similarly, a threat must cause a sustained fear in the person threatened. Say a defendant is mentally ill. While experiencing a psychotic episode, the defendant makes a criminal threat against a law enforcement official. Prior to the threat, the law enforcement officer knew or should have known that the defendant was a mentally ill person. Further, the defendant, outnumbered by six other officers, had no way of carrying out the threat. The hypothetical above would likely end with an acquittal.

A criminal charge is not a criminal conviction. A prosecutor may charge a defendant with a criminal threats charge, but there may be facts that support a dismissal or acquittal.

Friday, May 22, 2015

Are You An Eggshell Plaintiff?

Not everyone is alike. Indeed, that is what makes society so interesting. Los Angeles is comprised of artists, athletes, professionals, skilled workers, and educators. Personalities vary. Some are outgoing and eccentric, others are introverted. People from all different types of backgrounds, and ethnicity,  make up the community that we live in.

Similarly, not all injured parties are the same. Regardless, under the law, a defendant is liable for all injuries caused, even if the plaintiff is more susceptible to injury than the average person. You "take the victim as you find him or her." So, if a plaintiff is hypersensitive or predisposed to injury, the defendant may be out of luck.

This doctrine is referred to as the "Eggshell Plaintiff" Rule. The foundations of the principle lie in common law. The Eggshell name originates in the following hypothetical (which has been changed slightly):

Danny Defendant is speeding and drinking a glass of wine while he drives down Ventura Boulevard. Pennny Plaintiff is stopped at a red light 20 feet in front of Danny Defendant. As Danny Defendant approaches, he doesn't have enough time to apply the brakes. Penny Plaintiff screams as she sees Danny Defendant's car quickly advancing. Sure enough, Danny Defendant's car rear ends Penny Plaintiff's vehicle. Unfortunately for both Danny Defendant and Penny Plaintiff, Penny Plaintiff has an eggshell skull. The slightest pressure on her skull can cause it to fracture. When Penny Plaintiff's vehicle was violently struck from behind, her head hit the steering wheel, which resulted in a severe skull fracture. All of the doctors consulted after the accident said that no other person would have suffered a skull fracture; it is only because Penny Plaintiff had an eggshell skull. Nevertheless, Danny Defendant will have to pay for all damages related to the fracture, which is the full extent of Penny Plaintiff's injuries.

California has a jury instruction available should a Eggshell Plaintiff case go to trial. California Civil Jury Instruction (CACI) 3927 provides:

"Plaintiff is not entitled to damages for any physical or emotional condition that he or she had before Defendant's conduct occurred. However, if Plaintiff had a physical or emotional condition that was made worse by Defendant's conduct, you must award damages that will reasonably and fairly compensate him or her for the effect on that condition."

A lot of cases that have been filed in a court of law will involve discovery. During discovery, it is common for defense attorneys to ask about "preexisting conditions" or prior accidents. A defendant will not be liable for injuries that existed before the accident. But, the defendant will be liable if the prior injuries of plaintiff are aggravated by the negligent conduct of defendant. Thus, it is important to determine whether a plaintiff has suffered an aggravation or if the injury was not related to the negligence of the particular incident.

In a nutshell, all eggshell readers need not worry. Should you be involved in an accident, the defendant or at-fault party will be responsible for all injuries incurred, even it is quite unusual.

Friday, May 8, 2015

Traffic Changes in LA County Present New Obstacles for Defendants

Traffic citations are issued to almost every driver in Los Angeles. Broken tail light, speeding, driving without a license are all common mistakes.  No one is spared from the traffic courts, including attorneys, judges, and sometimes law enforcement personnel. Thus, everyone should be angry about recent changes being implemented throughout Los Angeles County.

Penalty assessments use to be the only outrageous part of getting a ticket. For those unfamiliar with penalty assessments, let me explain. The California Legislature has voted multiple times to add additional assessments to every single citation in California, on top of the base fine. These assessments are now a reliable way to increase revenue for the state. What use to be a $100 fine, adds up to around $500 after state assessments. Recently, the LA Times and other media outlets have criticized the burdensome law, which affects low-income families the most.

Now the courts have taken egregious steps to make traffic citations even more onerous. To my knowledge, these changes have not yet been made available to the public. Let me go through some of the major changes:


A failure to appear is a separate charge that can be added to a ticket, if a defendant misses his or her court date. When a defendant misses a court date, the court will issue a warrant, and place a hold on the defendant's driver's license. A hold will then lead to a suspension of the driver's license.

Upon notice of the suspension, defendants use to be able to go to the court clerk and purchase an abstract. An abstract removed the hold, and the defendant could then get his or her license reissued. No more.

Now, holds will not be removed until disposition of the case. Attorneys can and should request a speedy trial in light of these changes.


Some defendants cannot take advantage of traffic school (completion of traffic school, available once every 18 months, keeps a negligent operator point off of the defendant's driving record with the DMV).

A strategy that used to be utilized by attorneys, when traffic school was not available, was negotiation with the citing officers. When evidence was disputable, or when officers' were in a good mood, the court would accept an amended violation and plea agreement. This means that the officer would change the vehicle code violation to a non-moving violation (carries no point), and the defendant would change his plea to guilty. The moving violation would then be dismissed. This is no longer an option.

Given that negotiations are off the table, attorneys will have no other choice but to put on a trial. This means that discovery requests may be made more often.


Defendants miss their trial dates too. Before the new changes effective April 1, 2015, the court would have simply issued a warrant and placed a hold on the defendant's driver license. Unfortunately, this is not the case now.

Bench officers may now hold a trial in absentia. In absentia is a Latin phrase meaning "in the absence" of the defendant. If there is sufficient evidence of guilt, the court can find the defendant guilty without the defendant having been given an opportunity to present a defense. Pretty crazy, right?

These new policies are frowned upon by the defense bar. One can expect appeals to the higher courts. Until then, a person cited for a traffic matter should be careful. It is a new world.