Mixed Motives Employment Case To Be Decided By Supreme Court

An important case is now pending before the CA Supreme Court: Harris v. City of Santa Monica. Essentially, Harris (a pregnant bus driver) said she was fired because of her pregnancy. The City said she was fired because of her bad performance record, nevertheless, it requested the Court to allow it to put on a mixed motives defense. Essentially, this defense was designed to allow the City to show that it would have fired Harris regardless of her pregnancy, even though her pregnancy may have been considered as one of the reasons to fire. Traditionally, all that a plaintiff is required to prove is that the protected trait (race, sex, religion, etc) was a motivating factor behind the decision to terminate; even if other reasons were considered (poor performance), plaintiff would prevail.

The Court refused to allow the mixed movtives defense. The Court of Appeal reversed and allowed the mixed motives defense. The final decision will now be made by the CA Supreme Court. This is one to watch as it will have an impact on employment litigation.

I am attorney Robert A. von Esch IV. I practice business litigation. If you would like to contact me or have additional questions about this article, I can be reached via http://www.voneschlaw.com/.

Court Layoffs Will Result In Civil Court Delays

The headlines over the past two weeks have made it clear: LA Superior Court is laying off nearly 300 support staff workers. This will result in the closure of Court departments. As a result, civil matters will get sent to the back burner because criminal and family matters have priority. The days of civil lawsuits taking 3-5 years to complete are back again. So much for fast track legislation that required a civil matter to be resolved within one year, unless, it was deemed a complex matter. Construction defect, real estate, business, and personal injury lawsuits will take a lot longer for plaintiffs to resolve, as these are all civil matters.

I am attorney Robert A. Von Esch IV. If you have any questions about any of the above, please refer to my website at www.voneschlaw.com or give me a call.

Interesting Employment Decision by CA Supreme Court

On February 18, 2010, the CA Supreme Court overruled the CA Court of Appeals and held that Labor Code Section 233 (aka "kinder care" statute), which permits an employee to use accrued paid sick leave to care for ill relatives, does not apply to paid sick leave employment agreements/policies that provide for an uncapped number of compensated days off. Thus, if your sick leave policy provides for a capped number of compensated days off, Labor Code 233 applies. If your sick leave policy is very generous and provides for unlimited sick days, you don't get the protection of Labor Code 233. This decision is twisted. Look up McCarther v. Pacific Telesis Group for the complete decision.

I believe in being fair to employers and understand that they are providing jobs, which is important for society. Employers need to be protected, just as much as employees need protection. However, in this case, the employers could have protected themselves very easily by simply revising their paid sick leave policy. The CA Supreme Court just took away an entire employment groups paid sick under Labor Code 233. I wouldn't be surprised if this case is revisited by the higher courts in the future.

I provide business litigation legal services in Southern California. I represent employers and employees. If you have any questions, please do not hesitate to contact me. My webiste is http://www.voneschlaw.com/.

Real Estate Brokers Be Wary

You must have a valid real estate brokers license to obtain compensation for brokering a real estate transaction. If you do not have a valid license at the time of providing the service, you have no right to compensation. See California Business & Professions Code 10136.

It is very popular in the real estate business to pay a "finder" fee to someone bringing a buyer and seller together. This technically is legal. See Tyrone v. Kelly, 9 Cal 3d 1, 11-12 (1973).

However, if the "finder" engages in negotiations between the parties, even to the slightest extent, a brokers license is required. See Rees v. DRE, 76 Cal App 3d 286, 295 (1977).

Thus, if the "finder" encourages one party to pay a certain price, offers advice about a fair price, or does anything other than simply introduce a buyer and seller, he risks not being entitled to any compensation. Without a valid license, no payment can be had, despite having a contract or promise to do so.

I am attorney Robert A. Von Esch IV and I provide business litigation, commercial real estate, and construction defect legal services. More information about my practice can be found at http://www.voneschlaw.com/

Heavy Rains Will Test The Quality Of Your Home Or Commercial Property

The heavy rains offer property owners a unique opportunity to guage the quality of the construction of their home, office, warehouse, etc. Most the of time, Soutern California is fairly dry. However, we are now in an El Nino rain cycle. As a result, your property will be put to the test like never before.

All to often, the waterproofing systems of your property are improperly installed. This means that the waterproofing paper, roofing, flashing, and other weather resistant components will leak. Infiltration of water into your property can have devastating consequences, such as mold growth or dry rot. Often times, your insurance carrier will refuse to cover this damage.

As a result, you will likely bear the cost of repair on your own. The cost to remove and repair mold or dry rot can be very expensive. After you have addressed the mold or dry rot, you must then repair the waterproofing system failure that allowed water to enter your property in the first place.

If your property is relatively new, you may be able to compel your builder or contractor to repair the damage. After all, it is their fault that your property experienced water damage in the first place.

Depending on the type of property and the age, the process for obtaining compensation from your developer or contractor varies.

Residential Property:

If your home was built and closed escrow after January 1, 2003, it will be subject to Senate Bill 800 (Civil Code 895 et seq). This is a time and rule sensitive process that requires you to give the builder or contractor notice of your problems, allow them to inspect and propose repairs, mediate (settlement talks), and then litigate (trial or arbitration) if necessary. Failure to comply with this process properly, may result in a waiver of your claim.

If your home is a condominium conversion (typically an apartment turned into a condominium unit), Civil Code 1134 will control. Civil Code 1134 requires a convertor (condominium conversion builder/seller) to provide you with a list of all defects relating to the major systems, such as foundation, structure, roof, stucco, heating and airconditioning, plumbing, electrical, etc. Failure to do so, may subject the conertor to liability.

Commercial Property:

If your commercial real estate is defective; product liability, warranty, and negligence principles will apply.

Regardless of whether your property is residential or commercial, you should keep a watchful eye for the following defects during rainstorms: damp walls, black spots on walls (could be mold), moist spots on carpet or flooring, musty odor (could be mold or dry rot), and dripping from the ceiling or walls. Also look for water stains below the inside of your windows and in the corners as these are common signs of window leaks. If you can, look inside the attic. This will likely be the first place you will spot a roof leak.

If you see any of these conditions, take pictures and document them as best as you can. The more evidence you preserve, the better chance you have of getting these items fixed by your developer or contractor.

You should obtain the assistance of an attorney for these matters. Most construction defect attorneys work on contingency, which means they work for a percentage of any recovery. Thus, they only get paid if you get compensation from your developer or contractor.

These cases are complicated and you can bet your developer or contractor will be getting assistance from their attorneys. Don't get taken advantage of by your developer or contractor, hire an attorney.

I hope this helps. If you have any questions, please refer to my website http://www.voneschlaw.com/ or call me toll free at 866-605-0023. I represent Southern California property owners in construction defect matters.