Roll of the dice: A recent California Appellate court decision has caused a conflict in the law concerning the enforceability of gambling debts incurred in Nevada. In that decision, the 1st District Court of Appeal held that an assignee of claims of a Nevada casino could not collect in a California action based on checks he had drawn on a California bank and exchanged at a Nevada Casino for gaming chips. A previous case had allowed a foreign casino to collect in a California lawsuit against a California resident. According to the authorities in this field, once the dust is settled, and all is said and done, it is pretty clear that casinos can enforce debts based on bad checks so long as the casino exchanged cash, not chips, for the checks and placed no restrictions on the use of the cash. California public policy does not prevent the enforcement of checks written at casinos, even for gambling, at least where the casino is duly licensed and operating legally under the jurisdiction in which it is located.
Many people, faced with credit problems, in addition to inherent personal prejudices, have preconceived notions about what property they currently own "which will be at risk", and subjected to Trustee control or takeover in the event of a Bankruptcy filing. One area of repeated concern is that of private retirement plans, including profit-sharing plans designed for annuities, pensions, disability payments, death benefits, and retirement allowances from a private retirement plan; as well as IRA’s, and self-employed retirement plans. The determination of what property one will be able to keep, or will lose in bankruptcy, has to do with an analysis of the statutes conferring California state allowed exemptions. The exemptions are condoned as part of the federal scheme of bankruptcy. In general policy terms, these funds are exempt from being considered as available to your creditors in Bankruptcy. For IRA’s and self-employed retirement plans, there are other qualifying criteria. For those of you who contribute to your own IRA’s and self-employed Keoghs and SEP’s, this may sound a little vague, so a real life example of how one local District Court judge handled this may be helpful. In that case, the District Court judge upheld the assertion of the exemption on behalf of a bankrupt debtor who had an IRA/Keogh valued at about $500,000. The judge used such factors as the anticipated date of retirement, the probable life expectancy, customary lifestyle of the debtor and his dependents in reaching his decision. One lesson of this is simply to reinforce the old adage that in terms of "saving", it pays to pay "yourself" first.
Copying software is copyright infringement. Every software program is copyrighted from the moment it is created, automatically, as a matter of law. If you make copies of a program, or in the parlance of copyright law---"reproduce"---you may have infringed the copyright in that program. This seems simple enough, but what people do not know is that there exists what amounts to a "private police force" enforcing the rights of original authors---and agressive they are. The software police are actually a bunch of lawyers who work for a couple of software industry trade associations. Many of the major companies have their own enforcement departments. Enforcement programs consist of audits and media grabbing "raids" followed with lawsuits against infringers. The penalties for infringement are severe. Being caught with unlicensed software can mean all or some of the following: -paying the actual damages suffered by the copyright owner, plus the profits of the infringer; or, -in the alternative, pay statutory damages ranging from $500 to $20,000 per copyright; and as much as $100,000 if the infringement was willful; -pay the plaintiff’s attorney’s fees and costs; and, -forced destruction of the illicit software. An individual can even face criminal liability. Obviously, for the average person, these kinds of risks are not worth not being in compliance with your licensing agreements. Since the swiftness with which these kinds of lawsuits can be brought could involve you in unwanted litigation which you will not win, the simple threat of having to pay your opponent’s attorneys fees should be sufficient incentive to manage and monitor all of your software purchases in a lawful manner.
Item-Past real verdicts and the impressions they left: In 1984, a California woman, who was driving her husband’s Porsche after having had several drinks, had an accident in which her passenger was killed. She had been driving 60 in a 25mph zone. Porsche was ordered to pay $2.5 million for having designed a car deemed too high-performance for the average driver.
In 1985, an overweight man with a heart condition bought a lawnmower from Sears. He later had a heart attack while starting the mower and was awarded $1.8 million.
While in the process of attempting to burglarize a school, a man fell through a skylight. The company that insured the school ultimately had to pay the would be burglar $260,000 in damages and to give the would be burglar $1,500 a month for life as part of an annuity financed structured settlement.
Times have definitely changed. The simple truth is that the presentation of a personal injury claim or lawsuit is not, and never has been a "guarantee" to recovery. The substantive and procedural barriers have increased dramatically. Even in dramatic injury type cases, the financial risks involved in pursuit and presentation of such cases is becoming so enormous that the average citizen is actually enjoying less access to the court process, and this despite the fact that there are now 141,000 lawyers licensed in the state of California.
Please note the following: Item-Some typical 1990’s verdicts:
1991 Norwalk Superior Court: 48 year old woman, rearended and without fault, accumulates 130 chiropractic visits, has disk bulges at multiple levels, and $20,000 in out of pocket costs. Jury awards just $19,689.
1993 Orange County Superior Court: 27 year old male and 21 year old female, rear ended and are without fault. Total out of pocket medical expenses and lost earnings were $9,580. Defendant failed to show for her trial. Despite clear liability, failing to show for trial, and plaintiff’s modest expectations, Jury awards plaintiffs no damages.
1993 Riverside Superior Court: 56 year old female slips on puddle of water in video store. She has multiple level herniations of her spine, and nearly $50,000 in medical expenses. The Jury awards for the defendants.
Other "swings" of the "legal pendulum": The number of personal injury lawsuits has fallen almost 50% from 1992 to 1993 in Orange County Superior Court, the state’s one time leader in filings.
These "changes and trends" increasingly emphasize that the evaluation, investigation and preparation of your personal injury matter must be done by those experienced in the field. Almost weekly, we receive reports of how these trends are adversely affecting results in the courtroom. Very often, expertise in the field is not just a question of anticipating the strengths, but the weaknesses or potential defenses as well.
Verbal, physical, visual and sexual harassment of employees is prohibited. Harassment can take many forms. Verbal harassment includes racial, sexual or ethnic jokes, and insults. Physical harassment includes sexually suggestive or unwelcome touching, or obscene gestures. Visual harassment includes insulting cartoons, sexually suggestive or lewd pictures or photographs. Sexual harassment may consist of unwelcome sexual advances, deprecating sexual remarks, references to women as "honey", "doll", "dear," or an environment demeaning to women. Once harassment comes to or should have come to the employer’s attention, the employer must take action to remedy the situation, even if it is not requested by the victim.
Employers in California are strictly liable for the harassment of employees by their supervisors. Employer drug testing of employees is restricted. Preemployment testing by private employers is allowed under certain circumstances, but random drug testing of employees is not. Any testing program must be carefully planned. Where there is a transportation service/function involved, the rules allowing testing are more liberal.
The Immigration Reform and Control Act of 1986 forbids the employment of illegal aliens and requires verification of the "right to work". Compliance with the rules is complex and cumbersome. The INS distributes materials to employers regarding compliance and what is deemed necessary documentation. Most employers are not compelled by law to provide paid sick leave, vacation or other benefits. When paid vacation is provided, however, it constitutes wages, and is not forefeitable.
In California, prorated accrued vacation must be paid at the time of termination, even if an employee is terminated before a "probationary" period is completed. Employers are not required to provide paid legal or other holidays, nor are they usually required to observe holidays. Employers must only reasonably accommodate an employee’s request for time off to observe a religious holiday. Eligibility for health insurance or other insured type benefits are usually the subject of contracts between the employer and its insurers. Moonlighting cannot be totally prohibited, but some restrictions are allowable. An employee may be restricted from working for a competitor.
Privacy rights may preclude an employer from producing personnel documents. The employer, however, has an absolute obligation to allow present and former employees to inspect their files. The right extends to virtually all files maintained on the employee. This does not include the right to copy, but it does include the right to copy all documents that bear the person’s signature and relate to the obtaining and holding of employment. Medical information in the possession of employers is protected under California law from release without court order or authorization. Release of false information to a prospective employer of a former employee is a serious matter---leading to defamation, criminal and civil liability in which the damage award could potentially be trebled under the Labor Code.
Effective in 1994 is new legislation that prohibits the Family Law Trial Courts from considering the income of a payor/recipient’s new spouse, or non-marital partner in determining, using its calculations/formulas for child support. There is an exception to this prohibition in "extraordinary" cases. Extraordinary cases are those where an extreme and severe hardship would result to the child if the court did not consider the new spouse or non-marital partner’s income. This new legislation also provides that an extraordinary case is one where the parent intentionally and/or voluntarily quits working, or by some other means reduces his/her income. This new law also prohibits the Family Law Trial Courts from considering the income of the payor’s new spouse or non-marital partner when determining (modifying too) spousal support orders. For those whose support orders were based upon consideration of their new mate’s income, this legislation provides that you can come to court immediately to seek a review/modification of your current order.
With best regards, Gerald Spala April 30, 1994