Friday, December 19, 2014

Dog Bites and Strict Liability in California

We all love dogs. Well, most of us anyways. There is scientific evidence that supports that dogs are great mental health companions. Socially, they are important to a lot of dog owners' lives. Despite all of the love, dogs can also cause harm to individuals. Indeed, when I was young, and in Tennessee, a dog bit me. There were medical bills, and trauma that followed (even to this day at times).

Like other injury accidents, an owner of a dog can be sued for a dog bite. Under the common law, or laws developed through a number of cases, dog owners were routinely sued under a "strict liability" theory because their dog caused an injury to another. "Strict liability" means that the injured party did not need to prove negligence. It was much easier to prevail.

Dog bite lawsuits pursuant to strict liability under the common law required that the "domestic animal" exhibit dangerous propensities. Typically, dangerous propensities were proven by previous incidents when the dog harmed someone else. But, a dangerous propensity was also shown when the owner knew or should have known that the domestic animal could have caused injury to another person. Domestic animals also included cats, snakes, horses, and other pets. It's important to note that there was a distinction -- with wild animals.

If an owner of an exotic pet injured someone else, they could be held strictly liable without the dangerous propensity element. Thus, if a Las Vegas magician's tiger mauled someone, the magician could be held strictly liable even if the tiger never exhibited signs of having a dangerous nature before the incident. Contrast with the domestic animal lawsuit, a defendant could prevail if he could show that the domestic animal never exhibit dangerous propensities.

Fast forward to today. California enacted statutory law, which provides for strict liability in dog bite cases. There is no need to prove "dangerous propensities." California Civil Code 3342(a) states, in part that:

"The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness."

Does this statute prevent defenses? What if the dog was provoked by the actions of the injured party before the dog bite? Nothing in the Civil Code prevents a defendant from raising "comparative fault" or "assumption of risk" defenses. Therefore, if the plaintiff was a bad apple who hit the dog, the defendant dog owner may have a good case against the mean injured plaintiff.

In the event that you, or someone you know, was injured by a dog bite, it is wise to retain an experienced persona injury attorney. A lot of dog bites are serious. In some instances, plastic surgery is required. Experienced counsel can pursue a claim, most often with a homeowner's insurance policy, after a dog bite. Dogs are important to our lives but medical bills and pain and suffering should be addressed, if you, or someone you know, was a victim of a dog bite. We welcome your calls and questions. 

Friday, December 5, 2014

'Constructive Possession' in Drug Possession Crimes

Both federal and state governments are changing the way drug crimes are prosecuted. Sentencing guidelines that require strict prison terms are being discarded for more court discretion. States are also implementing drug courts, or diversion programs, that allow defendants to enter into drug treatment programs in lieu of jail.  There seems to be an understanding that drug offenders need treatment rather than punishment.

Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.

Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."

"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:

"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."

"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.

Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.

In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.

Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions. 

Saturday, November 22, 2014

Proposition 213 in Motor Vehicle Accidents

A number of our blog posts have touched upon the subject of prospective clients being injured by the actions of an uninsured motorist. This post will talk about individuals who are uninsured, that happen to get injured by an insured party in a motor vehicle accident.

Back in 1996, California voters passed Proposition 213. The purpose of the proposition: remedy an imbalance in the justice system that resulted in unfairness when an accident occurred between two motorists -- one insured and the other not. The law wanted to encourage insurance, and legal, compliance. So, it precluded uninsured motorists, and drunk drivers, from pursuing noneconomic damages in a lawsuit. Noneconomic damages include, pain and suffering, physical impairment, and disfigurement.

Prior to litigation, when there is a claim open with an insurance company, Proposition 213 can have a serious impact on negotiating a settlement. If a party is uninsured, but bringing a claim, the value of his or her damages are limited. Typically, adjusters will calculate noneconomic, or general damages, in their evaluations. But they will also calculate Proposition 213 if the claimant is uninsured -- they have an incentive to settle it for far less.

Initially, plaintiffs attempted to challenge the constitutionality of Proposition 213. The Equal Protection Clause, First Amendment, and Due Process Clause were all cited as grounds for invalidating Proposition 213. The claims all failed and Proposition 213 was upheld by the California Supreme Court.

Since 1996, the law has been expanded and interpreted broadly -- sometimes unjustly. Of course there are exceptions in place. For example, an uninsured employee driving an employers vehicle, which is not insured, can still recover if they are injured by a third party. A decedent's estate may also pursue general damages if the decedent was uninsured. Nevertheless, Proposition 213 is still applicable today, and important in evaluating a potential personal injury case.

The important take away: make sure you are insured! It is not only the law, it is also in your financial interest. And like our office has stated in other posts, you may as well add "uninsured / underinsured motorist coverage" and "med pay coverage." As always, we would be happy to speak with prospective clients to discuss your potential case in more depth. 

Thursday, November 6, 2014

Utilizing a Penal Code section 1538, Motion to Suppress, in a DUI Case

Not all criminal cases go to trial. In fact, more often than not, a criminal case will be disposed of prior to a trial. Plea deals are common because they can be beneficial for both the defendant and the People.

But, there are also circumstances when a case can be dismissed prior to a trial. One common motion that can be brought during the pre-trial stages of a case is a Motion to Suppress. Penal Code section 1538 provides the right of an accused to challenge evidence that may have been obtained illegally. Typically if the evidence is suppressed -- like the blood results of a DUI stop -- the case must be dismissed because the evidence is dispositive to the case.

One example of when a Motion to Suppress could be successful is when an officer stops an accused for a traffic stop that was unlawful. An officer cannot stop an individual without sufficient probable cause, a legal standard provided by the Fourth Amendment. Thus, if an officer reports that he stopped an accused for violating the Vehicle Code, but there was no Vehicle Code violation, the accused may be able to prevail at a P.C. 1538 hearing.

A criminal defense attorney has the responsibility to perform an adequate investigation. Evidence obtained by an attorney could lead to a decision to file a Motion to Suppress. An investigation can include, but is not limited to: requesting discovery from the prosecution, subpoenaing documents, and looking at possible video surveillance. It is now common for officers to have dashboard cameras, and also cameras on their persons. A video could show that a traffic stop was unlawful.

Some of my clients have asked what a motion consists of. A motion is a request for the court to do something. The party "moves" the court to make an order. A motion is started (usually) by an opening brief. The attorney files a memorandum with points and authorities (cases in support of the motion). Then, the prosecution (again, usually) files an opposition brief, highlighting their position against the motion. This allows the court to familiarize itself with the law and facts of the particular case. After the briefing with physical documents, there is an evidentiary hearing where witnesses testify. The arresting officer most likely will testify as to the facts of the stop or arrest.

A Motion to Suppress is a constitutional protection. It safeguards citizens from police abuses. There are other type of situations, as well, when a P.C. section 1538 may be appropriate. Law enforcement cannot exercise a warrant based on false information. Police cannot execute a warrant outside the constraints of the warrant. Facts should be scrutinized in every criminal case.

In conclusion, a defendant may not need to persuade a jury. There are pre-trial motions that can be potentially made, which could lead to a complete dismissal. It is important to contact an attorney should you be charged with a crime. We welcome your calls and questions. 

Wednesday, October 22, 2014

Primary and Secondary Insurance in an Automobile Accident

The world of California insurance is based on contract law, California statute, and insurance regulations. There are many overlaps, some of which can lead to confusion. Insurance disputes can cause a person to become disoriented -- because there is potentially a lot of issues that need to be resolved.

One such issue that arises frequently in my practice as an accident attorney: which, if any, insurance policy provides coverage for the accident. Two individuals involved in an accident does not mean that there will be only two policies in place at the time of the accident. Let me explain.

Yes, one could expect at least two insurance policies in place at the time of the accident if there are two parties involved (because California law requires insurance when driving); but, there could be two more if they were both driving during work, and within the scope of their work. Most employers carry commercial auto policies. Therefore, an attorney, representing an injured party, should certainly investigate to see whether there was an employer auto policy in place at the time of the accident.

But wait, there still could be more policies (more than 4)! Let us take the same hypothetical above, and add one set of facts. Two individuals are involved in an accident, during work, but one of them is borrowing his uncle's vehicle. Now, there could be a potential issue with the vehicle involved in the accident, because it is owned by a non-party to the accident. Insurance policies will sometimes follow the vehicle, particularly if the driver is a "permissive" driver, meaning that the driver had permission to drive it. With this new set of facts, there could potentially be 5 auto policies in place.

For fun we can add more. Take the second hypothetical but add yet another twist. Say two individuals are involved in an accident, during work, one of whom was driving his uncle's vehicle, but the accident was partly caused because a road was not properly maintained. The road should have been maintained by a government entity but it was not. Governments carry insurance too. The third hypothetical could involve 6 auto policies.

Because insurance can be carried by a number of parties, and can potentially cover the same accident, it is important to understand some of the basics of primary and secondary coverage.

More policies does not necessarily mean that an injured party will receive more. A person's damages are limited to the extent of the person's injuries. One million dollars of insurance will not be paid out (more often than not) for an extremely minor collision. However, more policies does mean that in the event of a catastrophic accident, a person will likely receive more.

At the outset, insurance carriers will determine who is the primary carrier. Those insurance carriers that are not primary are usually referred to as "excess" carriers, meaning that they will not have to pay out a claim unless the damages exceed the primary insurance's "limit." Typically the primary insurance carrier is the insurance carrier of the negligent party. Thus, if a primary carrier only has a limit of $15,000, it is more likely that an "excess" carrier will have to pay out a claim as well, if the injuries were significant.

Like I stated at the beginning of this blog post, it can be problematic if an injured party does not have the same knowledge as a seasoned personal injury attorney when it comes to insurance. It is extremely wise to contact a lawyer for the reasons above for a consult. Should you need to discuss a potential case, we welcome your calls and questions.

Thursday, October 9, 2014

California Posed to Reform Criminal Justice

Come November, California voters will get the opportunity to vote yes on Proposition 47. The proposed legislation would be beneficial for everyone -- residents, defendants, and inmates. As a criminal defense lawyer, I get to see everyday how our criminal justice system needs urgent reform.

A short while ago, the United States Supreme Court ordered that California lower its prison population. The harsh three-strikes law implemented 20 years ago led to a surge in incarceration. Also troublesome was the severity of non-violent crimes like: petty theft, fraud, forgery, and most drug crimes.

The proposition on the ballot will help allay some of these problems. First, it will mandate that a large amount of non-violent crimes be charged as a misdemeanor instead of a felony. This will ensure that individuals involved in a theft, in an amount under $950, and other individuals involved in personal drug crimes, will not face prison time. They will face jail time instead.

Reclassifying some felonies to misdemeanor will help but Proposition 47 does more. It will directly allow already incarcerated individuals apply for relief if they are eligible. Thus, those individuals already in prison for possibly stealing an item less than $950, and where violence was not involved, could be released. This will alleviate some overcrowding.

The savings derived from the release of inmates will benefit the community at large. Money from the budget will not go towards overcrowded prisons. Instead, all of the savings will be used for mental health programs in California. People who have struggled with substance abuse will be able to seek out help. Those that need counseling will receive it. These preventive measures do far more than mass incarceration to decrease recidivism.

Opponents cannot claim that Proposition 47 will lead to more violence because the reforms will only impact those who are involved in a non-violent crime. Further, the proponents of the reform make some great arguments, both legal and moral.

One of the biggest backers of Proposition 47 is a conservative Christian who believes in redemption and forgiveness. He was encouraged by prison ministries, a non-profit organization founded by Chuck Colson to help inmates readjust to non-prison life. Mr. B. Wayne Hughes Jr. wants to use his wealth to do good for those who are trying to change their lives for the better.

I encourage you to vote yes on Proposition 47. Further, if you want a consultation with respect to a criminal charge that may be impacted by this legislation, I welcome your calls. 

Thursday, September 18, 2014

The Elements of Negligence

There are a number of different ways to get injured, unfortunately. People may slip, or a person may be involved in a motor vehicle accident with someone else. Others may even fall from a shoddy building.

Injured persons all share a common possible cause of action: negligence. The person that slipped may have stepped on a banana peel left on the ground by a business employee; the person who struck the injured's vehicle may have been speeding; and the building, where the injured fell, may have not been up to regulatory code.

Negligence is common. Although there may be an infinite number of ways that negligence could occur, the elements of negligence are always the same. For a claimant/plaintiff to be successful, he or she must prove duty, breach of duty, causation, and damages. Let's go through the elements in more depth.

Duty and breach of duty is what makes a defendant "negligent." As individuals of society, we have duties to one another. We have a duty not to harm someone from our actions -- we must use reasonable care. Further, some individuals in society may have more duties than others. A business owner is obligated to provide safe products, i.e. he has a duty to ensure that what he or she is selling is safe. A driver of a motor vehicle must also ensure that he or she is obeying all laws, and driving with due care.

When someone does not live up to their duty to another, or breaches that duty, he or she may be "negligent." For example, let's take a motor vehicle accident. Person A was speeding, talking on his cell phone, and eating a burrito. Upon approaching Person B, Person A could not stop his vehicle in time. Person A's truck slammed into Person's B tiny car. The accident is intense. In this example, Person A breached his duty to drive with due care, and he was "negligent" to Person B.

Being "negligent" does not prove negligence though. There are four elements, not two. A claimant/plaintiff must also show causation and damages.

Causation must connect the "negligent" act with the injuries incurred (damages, which we will discuss shortly). For example, if a person fell from a shoddy building, the building owner still may not be liable for the injuries. Why? Maybe causation cannot be proved. Even though the building was not up to code, the breach of not following the building codes had nothing to do with why the person fell from the building. The falling person was pushed by a criminal. In this example, the building owner cannot be responsible because his failure to not keep the building up to code did not cause the person to fall -- the criminal who pushed him off was responsible for the fall.

Finally, any negligence claim must prove damages. Damages are those monetary costs that an injured person may face: medical bills, car repair bills, rental bills, pain and suffering, lost wages, etc. If someone is involved in an accident, but fortunately, the person is not harmed, he or she does not have a negligence case. There must be damages for any case to proceed.

Negligence may be a common occurrence in the law, and laypersons may be familiar with some of the concepts, but it is wise to consult with an attorney who has experience in personal injury. If you or a loved one has been injured as the result of someone else, contact our office for a free phone consultation. Be safe out there.

Monday, September 1, 2014

Will the Natural and Probable Consequences Doctine be Rejected in California?

A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.

Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.

Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.

In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.

But in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant can never be convicted of first degree premeditated murder on a natural and probable consequence theory. In Chiu, the defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately until one of them shot and killed another young man. The defendant was charged with first-degree murder under the theory that he aided and abetted an "assault," which premeditated murder of the perpetrator was a natural and probable consequence. Defendant was sentenced to 25 years to life after he was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.

Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:

"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."

It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application. 

In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.

Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law. 

Tuesday, August 19, 2014

I Was Involved In a Motor Vehicle Accident; Now What?

Motor vehicle accidents are common in Los Angeles. In fact, it brings to mind the Saturday Night Live skit, "The Californians." All too often, Angelinos communicate about their commutes, experiences on the road, and traffic. Also, people talk about their unfortunate "accidents" on the highways.

When you, a loved one, or friend, is involved in an accident, there are some steps that should be taken immediately. By taking these steps, you can ensure that your injuries are addressed and that any future claims are protected.

One, pull over, if possible, to a safe location with the other driver involved. After an accident, it is easy to get distracted and careless. Remember to protect yourself by moving your vehicle to a proper stop area, if possible.

Second, call the police. Emergency personnel are trained to handle all types of accidents, including motor vehicle. This step addresses a few things: (1) you get to reflect on any pain and whether you are severely hurt; (2) you get to engage an independent third party who can testify as to what happened during the incident; and (3) you can receive immediate medical treatment, if necessary.

Third, exchange the proper information with the other party involved. This step is common knowledge, or so it seems these days, but it is essential. Have the other driver give you insurance information, personal information, like address and phone number, and ask him or her what happened immediately prior to the accident. Take mental notes as what happened during this exchange.

Fourth, give a statement to the police and see if any witnesses are at the scene. Let me be clear: it is extremely important that you seek immediate medical attention if you need immediate care. In the event that you do need immediate medical attention, do not stay at the scene of the accident. Inform the emergency personnel and proceed to a hospital. But, if your injuries do not need immediate attention, talk to any third parties who may have been near or at the scene of the accident. Collect their information too.

Fifth, take notes as to where your vehicle is going, if towed. Usually, vehicles are damaged to such an extent that they need to get sent to a body shop. It is important to have the body shop and towing information for the future.

Sixth, go to your doctor and if you do not have a primary care doctor, go to a hospital. Even if your injuries are not severe, it is important to seek treatment as soon as possible. Attorneys are not doctors, and more often than not, neither are the individuals involved in the accident (as a matter of probabilities). Doctors are the best professionals suited to ascertain the extent of your injuries and how to treat it appropriately. Do not hold off going to the doctor, because it could lead to more medical problems.

Seventh, open up insurance claims with your own carrier and the carrier of the third party involved in the accident. Automobile insurance, required by law, will have information about your coverage, including whether you can obtain a rental, and how quickly your vehicle can be repaired, if at all.

Eighth, contact an experienced personal injury attorney. Accident lawyers know how to resolve personal injury disputes, deal with insurance companies, and preserve your rights. It is simply not smart to move forward without representation, because of the nuances of personal injury law.

This is not an exhaustive list, but these steps should be taken after an accident. Of course, accidents are frustrating, painful, scary, and annoying. But hopefully, this short blog can make the experience less frightening. We welcome your calls and questions; our firm would love to help if you or a loved one has been involved in a motor vehicle accident.

Wednesday, August 13, 2014

Civil Compromise in a Theft Case

Allegations of theft usually take place at large retail stores like Target, Sears, and Walmart. These establishments have their own security protocols in place, including but not limited to: guards, cameras, detectors, and other devices. These steps prevent merchandise from being taken unlawfully.

Despite these steps, people will sometimes take an item without consent. When this happens, the injured store will send a civil restitution demand letter to the perpetrator. Further, a theft charge is usually filed against the individual shortly thereafter. A misdemeanor or felony carries possible jail time, fines, and a permanent criminal record, which could affect employment in the future. So, theft can lead to both a civil and criminal case.

Under California law, when a person is charged with a theft crime, like petty theft, there may be an opportunity to have the charge dismissed.

A civil compromise is one way that a criminal charge can be dismissed. Pursuant to Penal Code section 1378, an injured party may indicate to the court that it has "received satisfaction" for the injury. In other words, the victim of the theft can represent to the judge that there was an agreement made between the parties. At that point, the trial court, in its discretion, may stay the prosecution and order the defendant to be discharged. The case cannot be adjudicated again. Let me be clear though that the judge is not obligated to accept a 1378 civil compromise. Also, a victim may not be open to a civil compromise.

While every company does not offer this type of civil compromise, a criminal defense attorney can certainly explore this option.

Moreover, a civil compromise is not the only way to successfully defend against a theft charge. A defendant may be able to argue insufficient evidence, or mistaken identity. There have been instances where an employee at the store made false accusations. A video may vindicate a defendant.

Similar to a drug diversion, sometimes a defendant can even receive a conditional dismissal. A conditional dismissal means that a court will eventually dismiss the case after a condition has been met.

My office has negotiated conditional dismissals in past theft cases. For example, one client had his petty theft charge dismissed after he completed 10 hours of theft classes. Such plea bargains enable the defendant to avoid jail time and other negative consequences.

Regardless of the different ways a case can proceed forward, it is important to have a criminal defense lawyer retained on your case. Experience and commitment goes a long way in a theft case. We welcome your calls and questions.

Tuesday, July 22, 2014

California Appellate Case Adds Bite to Bad Faith Litigation

Insurance companies are supposed to serve the interests of their insureds. By paying a premium, insureds should expect peace of mind, financial security, and a good faith investigation in the event of an accident. Unfortunately, that isn't the case all of the time.

Sometimes insurance companies act in "bad faith."Bad faith" is a legal term derived from principles of contract. Certain contracts,  like insurance, require that  parties act with "good faith and fair dealing," with one another. Specifically to insurance, insurers are mandated to fairly investigate, evaluate, and process a claim.

When an insured's insurance company fails to properly evaluate or process a claim, it could potentially lead to "bad faith" litigation against that insurance company. Recently, a California case expanded the ability for insureds to bring a bad faith litigation case against their own insurance company.


The Plaintiff in Maslo was involved in a motor vehicle accident where it was found that the other driver was at fault. After medical treatment for a number of months, Plaintiff submitted a demand to his own insurance company for the policy limits under his UM (uninsured motorist) provision.

Ameriprise, the insurer, asked for an extension, and then commenced arbitration proceedings. In doing so, it did not make a settlement offer and refused to mediate the matter. As a result, Plaintiff had to wait an additional 2 years to receive an award, less than the policy limits.

After arbitration, Plaintiff filed a bad faith lawsuit against Ameriprise. Plaintiff alleged that Ameriprise forced Plaintiff into arbitration without investigating, evaluating, and attempting to resolve the claim. Ameriprise rebutted, as a defense, that there was a "genuine dispute" regarding payment, and that the arbitration award evidenced as much, since it was less than the policy limits. Ameriprise further stated that it was the fault of Plaintiff for overvaluing his own claim.

The trial court agreed with Ameriprise but the California Court of Appeal, 2nd Appellate District disagreed and reversed. The Appellate Court held that an arbitration award lower than the policy limit does not necessarily preclude an insured from bringing a bad faith lawsuit. It stated, in part:

"An insurer’s statutory duty to attempt to effectuate a prompt and fair settlement is not abrogated simply because the insured’s damages do not plainly exceed the policy limits. Nor is the insurer’s duty to investigate a claim excused by the arbitrator’s finding that the amount of damages was lower than the insured’s initial demand. Even where the amount of damages is lower than the policy limits, an insurer may act unreasonably by failing to pay damages that are certain and demanding arbitration on those damages."


The recent decision makes it clear that insurance companies cannot simply rely upon an award, in of itself, to clear themselves of "bad faith." Insurance companies have a duty to thoroughly investigate, evaluate, and process a claim after liability is determined, no matter if they think that they can prevail at an arbitration proceeding. This means that insurance companies will have to make a good faith attempt to settle first party claims prior to arbitration.

It is always best to have an attorney represent your interests. Our office has a lot of experience in dealing with insurance companies -- and potential "bad faith" situations. We welcome your questions, calls, and cases.

Monday, July 14, 2014

I Was Arrested for a DUI; Now What?

A California DUI carries some harsh penalties. Due to the nature of this offense -- it is a clear public safety concern, our state has elected to take a tough stance. But just like any other criminal charge, there are steps that an accused can take that will help him or her in the future.


When there is sufficient probable cause, law enforcement may investigate and arrest an individual for a DUI. While defense attorneys can later challenge probable cause, it is wise to be respectful when stopped for suspicion of a DUI.

You should be polite and cooperative with law enforcement. It does not mean that you should waive your rights, but it will not help to be combative during the stop. Cursing, yelling, and being rude will not make the officer go away. In fact, it will be mentioned in the police report.

However, you should not volunteer information. Exercise your right to remain silent. Miranda is the landmark case, which protects statements from being admitted into evidence if there has not been an affirmative warning, but Miranda warnings only have to be given after a formal arrest. Thus, law enforcement will always utilize your statements to assess guilt before a warning. Slurred words, admissions of guilt, and memory lapses can lead to problems down the road.


If you have been arrested, you should exercise your right to an attorney. There is a reason that there is law school and a bar examination. Further, there is a reason why attorneys charged with a crime will almost always retain another attorney. It is difficult for someone, under an emotional state, to represent themselves.

More than that, retaining an attorney will mean that a professional can immediately begin to protect your rights. Experience and knowledge can go a long way in fighting a DUI charge.

Schedule your DMV suspension hearing, or have your attorney do it immediately. There are two aspects to a DUI, as discussed on my website. There is the actual criminal charge handled by the superior court, and the DMV aspect of the case. They are distinct and separate, although the court can impact what the DMV will do.

Within 10 days of the arrest, a hearing needs to be scheduled. A DMV suspension hearing is a great opportunity to explore probable cause, the officer's testimony, and other evidence that will be used against you. Do not sleep on your privileges with respect to licensing issues.


 Finally, after you have been arrested and released under your own recognizance, exercise your right to information. The web has become a treasure trove of free legal content, including my blog and website. You should become familiar with the criminal, and DMV, process. Further, you should research potential DUI attorneys. An accused should be aware of the charge against him or her, and the consequences of that charge.

Our office invites your questions. We have experience in DUI, and other criminal cases. Remember that time is of the essence, so do not procrastinate if you or a loved one has been charged with a DUI.


Monday, June 30, 2014

You Should Know What's In Your Automobile Insurance Policy

As a practicing injury accident attorney, I get the pleasure of having to deal with insurance companies on a daily basis. Insurance companies are essential but if you do not understand the relationship between the insurance company and yourself, you could find yourself in trouble later on.

Almost every client we retain lack knowledge on what is specifically in their insurance policies. They do not know what their bodily injury policy limits are. Or whether they have rental coverage. Some do not even know what medical payment coverage is or uninsured motorist coverage for that matter. It is a problem because it can leave you having to pay for expenses out of pocket that could have been avoided.

Let's discuss insurance policies so that my readers can be prepared, and financially secure in the event of an accident.


First, what is insurance? Insurance spreads risk among a number of parties. You purchase a contract with a premium, to cover you in the event of an occurrence. That occurrence could be as simple as a rear-ender or as devastating as multi-vehicle collision resulting in death. The pooled risk, held by the big insurer, pays for the liability of the negligent party, and in some cases, the defense fees in litigation. Thus, the insurance contract transfers risk. You pay the premium so that if something bad does happen -- namely, an accident that you were at fault for -- you do not have to go bankrupt.


Second, automobile insurance policies have different levels of "protection." The insured gets the choice of paying a higher premium to obtain more beneficial provisions. Thus, if there is an unfortunate vehicle accident, the insured gets more security, i.e. does not have to pay out of pocket for a rental, does not have to pay out of pocket for medical treatment when liability is in dispute, and so on.

You should be familiar with some of the most basic provisions. One, you should know your bodily injury limits. A policy limit is the monetary limit at which the insurance company will pay for that specific liability. For example, a person with a $50,000 bodily injury limit will not have to pay anything out of pocket if the damages to the injured party do not exceed $50,000. However, if it was a catastrophic injury, the person's assets could be in jeopardy. Therefore, you should consider whether a higher limit makes sense for your particular circumstances.

Two, you should know whether you have rental coverage and medical payments coverage. Rental coverage means that your rental will be paid for while you vehicle is being repaired regardless of fault. Most individuals do not know that their property damage coverage may not extend to the rental. Medical payments coverage, similar to rental, will cover medical treatment up to a certain limit, regardless of fault. Thus, if you need to be transferred to the hospital immediately and undergo emergency treatment, the bills will be paid for by this provision -- even if it is questionable whether you were the cause of the accident.

Three, you should be aware of your uninsured motorist coverage. In California, you have to specifically sign and waive this provision if you do not want it. Uninsured motorist coverage will pay for your medical treatment and bills if the negligent party does not have insurance of his or her own. It's wise to purchase uninsured motorist coverage, because you should always protect yourself first -- and you cannot expect for everyone to abide to the law of the land.


If you are unfamiliar with certain provisions in your insurance policy, you should contact a personal injury attorney. Lawyers in this field have the experience and knowledge on how to advise individuals appropriately. Finally, remember that knowledge is power -- and in this area, it could mean savings too.

Saturday, June 14, 2014

California Supreme Court Upholds the Use of Red Light Cameras

A red light camera ticket is a type of traffic infraction that can cost you money, time, and anxiety. In fact, with so much misinformation online, I have spoken with many confused callers. They were not happy with the non-legal blog's advice.
A red light camera ticket is enforced by way of technology, rather than an officer. While frustrating, it is still legal in some jurisdictions. Indeed, the California Supreme Court, on June 5, 2014, upheld the use of red light camera enforcement. This blog will touch upon the recent case, and other aspects of red light camera citations. 


First, do not simply ignore the citation. Yes, I am aware of the information online from non-lawyers. It is not sound advice. The California Legislature enacted Vehicle Code section 21455.5 some time ago. This California law controls the requirements for how a jurisdiction may implement camera enforcement. Therefore, while some cities may have discontinued their programs, other have not. Culver City, Beverly Hills, West Hollywood, among others, have valid camera enforcement pursuant to the law.

Thus, if you ignore the citation and miss a mandatory court appearance, it is possible that you can be found guilty of a failure to appear violation. This will add significant, and unnecessary, fines to your citation. Unless you were active military, incarcerated, or receiving medical care, the court will most likely find you guilty.


Second, the California Supreme Court has addressed some of the constitutional issues related to evidentiary foundation, authentication, hearsay, and confrontation. People v. Goldsmith (2014), S201443, recently decided, upheld the use of camera enforcement. The decision was a major victory for the red light camera programs. 

The arguments in that case were similar to some of those posted on the online blogs. The defendant in the Goldsmith case argued, one, that the photos, obtained from the red light camera, were not legally authenticated. In short, the defendant argued that the photo evidence could not be admitted against her because it was unreliable. The California Supreme Court disagreed.

With sufficient legal rationale, the Court explained that the photos were reliable, and notwithstanding the reliability, the evidence could be admitted "as provided by law." There is a statutory presumption that the photos are reliable. The trial court does not have to accept the photos as true, but it can admit it into evidence to be weighed against the defendant.

Two, the photos are not hearsay, according to the California Supreme Court. Section 1200 of the Evidence Code defines hearsay as, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." The Court clarified that a camera could not be characterized as a "person," who has the capacity to make a statement. The law does not contemplate whether a machine can make a statement -- at least not yet.

Third, the confrontation clause is not invoked because a defendant cannot, and does not have the right, to cross-examine a camera. Machine-generated printouts are not within the bounds of Sixth Amendment protection.


I always advise consulting with a defense attorney. Although traffic infractions only involve a fine, not jail, it is best to consult with a lawyer for a few reasons. It can save you money. It can save you time. It can give you peace of mind.

Moreover, a red light camera ticket does not necessarily mean that you will be found guilty. The burden of proof in a traffic case is still "proof beyond a reasonable doubt." If the picture is unclear, or if there is an identity issue, the ticket can be dismissed. But, it is always wise to seek out the advice of a person with knowledge and experience. Our office invites you calls, and we remind you that nothing in this blog should be construed as legal advice. Watch out for the machines.