Divorce and Preliminary Financial Disclosures

Divorce and Preliminary Financial Disclosures

With estimates of the US divorce rate ranging from 40 to 50 percent, divorce is an issue that affects almost everyone at some point of another, either as a child or as an adult. One of the most complex issues surrounding divorce, especially for some families, is the issue of property division. The division of property between divorcing spouses requires full disclosure of the financial resources of both spouses.  

Community Property Theory Is Deceptively Complex

There are two main legal theories that govern divorce-initiated property division in the various US states: the equitable division theory and the community property theory. California is a community property state. Many people think of community property as a simple matter – “each spouse gets half.” With the law, however, it’s rarely that simple, and it isn’t that simple in the case of California community property law. 

Misconceptions about Community Property

In a California divorce, a court will divide all spousal property into two categories: community property and separate property. Generally speaking, community property is split equally between the spouses while separate property is returned to whoever owns it. Misconceptions abound, however, about what constitutes community property and what constitutes separate property.

Some of the most common misconceptions are:

  • Property owned in the name of one spouse belongs to that spouse. In fact, California family law courts generally ignore formal legal ownership.

  • Property inherited by one spouse is shared equally by both spouses. This is generally not the case – inherited property is usually considered the separate property of the spouse who inherited it.

Required Financial Disclosures

Because of the complexity of California community property law, the court ultimately decides who gets what if the divorcing spouses cannot agree between themselves. It is for this reason, and because of the possibility of fraud and misunderstanding of the law, that California law requires both spouses to present to the court full disclosure of their financial assets in order to determine property division.

The two main forms that must be presented to the court during the course of preliminary financial disclosures are:

Consequences of Failure to Disclose

During a California divorce, failing to disclose the full extent of your assets and liabilities (even if it turns out to be your separate property) can have serious consequences. Imagine failing to disclose the existence of a condominium in Hawaii that is actually only half yours, only to see all of it awarded to your spouse during divorce proceedings because of your attempt to conceal its existence. In extreme cases, even criminal penalties carrying years of prison time are possible.

CKB Vienna Will Help You Fight for Justice

If you are involved in a divorce where significant financial assets are at stake, or if you anticipate becoming involved in such a divorce, don’t try to handle it alone. Call CKB Vienna today or contact us online to schedule a consultation to discuss your case. 

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

California’s Fair Chance Act Restricts the Use of Criminal Records in the Employment Screening Process

California’s Fair Chance Act Restricts the Use of Criminal Records in the Employment Screening Process

The statistics are little short of astonishing – nearly one-third of Californians have criminal records. If employers refused to hire anyone with a criminal record, how would that affect the unemployment rate? Fortunately, such is not the case. A decade old criminal conviction for possession of a user’s amount of marijuana, for example, is not likely to get you blacklisted except for certain sensitive positions, such as those requiring government security clearance.

A potential problem remains, however, for responsible citizens with criminal records who are searching for employment – and such people abound. California has responded by enacting the Fair Chance Act, an amendment to the California Fair Housing and Employment Act (FEHA).

This amendment limits the ability of employers with more than four employees to ask about many criminal convictions or discriminate against applicants with certain kinds of criminal records. The Fair Chance Act took effect on January 1, 2018. 

Questions an Employer Cannot Ask Right Away

California employers cannot ask “Have you ever been convicted of a felony?” before first extending the applicant a conditional offer of employment. The purpose of this law is to force employers to give convicted felons a chance to prove themselves without being screened out at the beginning of the hiring process. 

Questions an Employer Can Ask Only after a Conditional Offer of Employment

California’s Fair Chance Act does allow an employer to ask about criminal convictions after a conditional offer of employment has been extended. The employer cannot withdraw the offer based on a “yes” answer, however, without evaluating whether the offense has a “direct and adverse relationship” to the specific job duties the prospective employee will be required to undertake. 

Due Process Obligations Once a Criminal Record Is Discovered

If, after due consideration of an applicant’s criminal record, the employer declines to hire the applicant, certain legal requirements kick in:

  • The employer must provide the rejected applicant a written notification that the reason he is not being hired is because of his criminal record.

  • The notification must (i) inform the rejected applicant of the specific conviction that was the basis of the employer’s decision not to hire him, (ii) include a copy of the rejected applicant’s conviction history report if one is available, and (iii) inform the rejected applicant of his right to respond within a deadline of no less than five days.

  • If the rejected applicant notifies the employer within five business days that he intends to respond, the employer must allow an additional five business days for the rejected applicant to respond (for a total of 10 business days).

  • The employer must provide notification of the final decision and, if the decision is unfavorable, the rejected applicant’s right to appeal to FEHA and through the company’s appeal process if such a process exists.

Criminal Records That Employers May Never Ask About or Consider in Their Hiring Decisions

Certain types of criminal records may ever be asked about or used as a basis to refuse to hire an applicant, including:

  • Juvenile records;

  • Arrests that did not result in a conviction;

  • Sealed records (expungements, for example);

  • Diversion programs; or

  • Certain minor marijuana convictions.

Contact CKB Vienna Immediately for Sound Legal Advice

If you are confused about the legal requirements concerning California’s hiring practices, if you anticipate a dispute with a job applicant, or if such a dispute has already arisen, call CKB Vienna today or contact us online to schedule a consultation where we can discuss your situation and answer your questions

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Parental Leave in California: How It Works

Parental Leave in California: How It Works

Once upon a time there was no such thing as parental leave, except as a voluntary policy at a handful of progressive companies. Then came mandatory maternity leave (which includes pregnancy disability leave), and finally, paternity leave. The term “parental leave” refers generally to either or both of maternity leave and paternity leave. California parental leave is some of the most employee-friendly legislation in the nation.

Parental leave prevents an employer from firing or laying off an employee for taking time off to spend time with their new child (and, in the case of pregnant women, due to disability caused by pregnancy).

Not All Employers Are Required to Offer Parental Leave

Under current law, employers with fewer than 20 employees are not required to offer parental leave to their employees. This is because, in such small companies, the loss of even a single employee for an extended period of time could cause major adverse effects on the company’s business.

Relevant Legislation

The three most relevant legislative acts pertaining to parental leave in California are:

In the event of a conflict between state law and federal law, federal law generally prevails. California does not violate federal supremacy, however, by offering its residents greater rights than the rights afforded them by federal law; the two California statutes mentioned above do exactly that.

Requirements

Employees subject to parental leave obligations are required to offer their qualifying employees: 

  • 12 weeks of parental leave within the first year of their child’s birth, adoption, or foster placement. 

  • Pregnant mothers are generally allowed to take an additional 10 to 12 weeks off work due to pregnancy disability. 

How Employees Qualify

To qualify for parental leave, an employee must have:

  • worked for a qualifying employer for at least one year;

  • worked at least 1,250 hours in the 12 months preceding the leave, and

  • work at a location where the employer has at least 50 employees in a 75-mile radius (but only 20 employees under the NPLA). 

Employer Payments during Parental Leave

Generally, the only obligation that parental leave places on the employer is not to fire or lay off the employee for taking parental leave. Employers are not required to pay their employees, although they may allow them to take paid sick leave, vacation leave, or personal leave. The only exception is San Francisco where a city ordinance requires certain employers to offer paid leave.

California State Government Payments during Parental Leave

The state of California will pay 60 to 70 percent of most employees' wages, up to a maximum of $1,252 (in 2019) for up to six weeks. This benefit applies even if you work for a company with fewer than 20 employees that is not subject to parental leave obligations.

CKB Vienna Can Help You Navigate the Employment Law Maze

If you are confused about federal or state federal leave policies, if you are involved in a dispute related to parental leave, or if you even anticipate such a dispute, call CKB Vienna today or contact us online so that we can make an appointment to discuss the matter. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Home Improvement Contracts in California

Home Improvement Contracts in California

California has enacted a special statute, the California Home Improvement Business statute, that sets out what must be included in a home improvement contract. This was a somewhat unusual (although hardly unprecedented) move by the California legislature since most California contracts are governed by general contract law, much of it created by courts rather than by the legislature. The statute includes:

  • Required wording that must be included;

  • Specific locations in the contract where the required wording must be included; and

  • Specific typefaces that must be used.

In other words, don’t try to draft a home improvement contract without consulting the statute first.

What Is a “Home Improvement Contract” Anyway?

Under California law, a home improvement contract applies to residential rather than commercial property. It may involve alteration, remodeling, repair, conversion, modernization, or addition to a residence. It might include, for example, projects such as:

  • Redesigning the interior of a residence by, for example, installing a spiral staircase;

  • Installing a swimming pool or a jacuzzi;

  • Enclosing a porch;

  • Constructing a basement; or

  • Similar activities.

The statute protects both homeowners and tenants.

What the Statute Does Not Cover

The California Home Improvement Business Statute does not cover:

  • The construction of a brand-new residence;

  • Contracts with a total price of of $500 or less; and

  • Certain small-scale service and repair contracts.

Remember that other legislation may cover the drafting of contracts for projects not covered by the California Home Improvement Business statute. It is only a minor exaggeration to say that, in California, some law or another applies to the construction of just about anything. 

Requirements Imposed By the Statute

Space limitations prevent a full description of the requirements of the statute. Some of its highlights, however, are listed below:

  • The contract must be in writing.

  • The contract must include the words “Home Improvement” in at least 10-point boldface type.

  • In general, no “fine print” is allowed – the text must be in at least 10-point type, and headings must be in boldface type.

  • The contract must contain the wording “You are entitled to a completely filled in copy of this agreement, signed by both you and the contractor, before any work may be started.” This wording must be printed in at least 12-point boldface type.

  • No work may be commenced until the contract has been signed and dated by both parties.

  • The contract must include terms regarding dates and addresses, relevant licenses and registrations, a clear description of the scope of work, approximate commencement and completion dates, and the total contract price.

  • Depending on the payment arrangements, the contract must include specific wording and typefaces that describe legal limitations on down payments and/or progress payments. This wording must be printed in all caps.  

We Can Help

Please allow us to reiterate that the foregoing is an incomplete outline of the requirements of the California Home Improvement Business statute. If you require further information, or if you need a home improvement contract drafted or revised on your behalf, call CKB Vienna today or contact us online to schedule a meeting where we can discuss your case. 

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Liquidated Damages Provisions in California Real Estate Contracts

Liquidated Damages Provisions in California Real Estate Contracts

A real estate contract is a private deal between at least two parties. In a sense, it is a form of private law, because it is binding on the parties once they enter into a valid contract. If the contract is breached, the party who committed the breach is obligated to pay the other party the amount that is necessary to restore the non-breaching party to the same financial position that he would have enjoyed had the contract not been breached.

What Are Liquidated Damages?

In the event of a breach, damages for the breach of a contract that lacks a liquidated damages provision will be determined by the parties through negotiation or, if necessary, by a court if the dispute proceeds to a lawsuit. A liquidated damages provision purports to determine these damages at the time the contract is signed; for example, “If Party A commits such-and-such a breach, Party A shall pay Party B $10,000 in compensation.” Generally speaking, liquidated damages provisions can be enforceable in court – but not always.

Compensatory Damages vs. Punitive Damages

As stated above, in a breach of contract case, the goal is to compensate the non-breaching party for his losses. Although in other types of civil cases, such as personal injury cases, punitive damages are possible, what contractual damages are not supposed to accomplish is to punish the breaching party. It is only to compensate the non-breaching party for his actual or reasonably anticipated losses. 

How Liquidated Damages Must be Determined in Order to Be Enforceable

California Civil Code Section 1671 deals with liquidated damages. Under Section 1671, a valid liquidated damages clause must specify an amount of damages that appears objectively reasonable at the time the contract was signed. As a consequence, California courts require that the amount of liquidated damages must have been calculated in reference to objective factors, such as the likely decrease in the value of real estate if a certain breach occurs.

Another implication of this principle is that California courts are not sympathetic to arguments like, “Although the amount of liquidated damages specified in the contract was reasonable at the time the contract was signed, this amount is no longer reasonable due to subsequent changed circumstances.” In other words, the parties to a real estate contract assume the risk of changing circumstances by the very act of signing a contract with a liquidated damages clause.

What Happens If a Liquidated Damages Clause Is Found Unenforceable?

If a court finds a liquidated damages provision to be unenforceable, the contract will not be scrapped. Instead, the court will determine damages based on the actual losses suffered by the non-breaching party, just as if the contract had contained no liquidated damages provision in the first place. 

CKB Vienna Can Help

The foregoing is only a very abbreviated description of California liquidated damages law as they apply to real estate contracts. There is a lot more to liquidated damages law than what is stated above, and liquidated damages clauses must be drafted with care. If you are facing a liquidated damages issue, either before or after signing a real estate contract, call CKB Vienna today or contact us online to schedule a meeting where we can discuss your case. 

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.


How Sexual Orientation Affects Child Custody Decisions in California

How Sexual Orientation Affects Child Custody Decisions in California

Over the past decade or so, gay rights has been one of the fastest-changing areas of the law in the nation’s history, especially in California. And of course, gay rights incude rights with respect to child custody, visitation, child support payments and even adoption. The following is a brief description of California law as it stands in 2019.

Discrimination vs. the “Best Interests of the Child” 

Traditionally, the “best interests of the child” has been the determinative principle in child custody decisions. Although the sexual orientation of either parent has long been considered a factor in determining the best interests of the child, with the legalization of gay marriage in California (in 2008) and nationwide in 2015 with the decision in Obergefell v. Hodges, discrimination against gay people has been sharply circumvented.

Consequently, the sexual orientation of the parents has become less important in child custody decisions. In fact, strictly speaking, in California, the sexual orientation of the parents is irrelevant to the determination of the best interests of the child. Courts are expected to treat gay parents the same as heterosexual parents when making such decisions. 

California Family Code Section 3011 and the “Best Interests of the Child”

When determining child custody, support and visitation based on the “best interests of the child,” California courts will apply California Family Code Section 3011, which includes certain enumerated factors. Although the wording of these factors has not changed since Obergefell was decided in 2015, the California Supreme Court’s interpretation of the wording has changed to eliminate any discrimination based on the sexual orientation of the parents. 

Legal Factors That Judges Must Consider under Section 3011

Under Section 3011, a family court must consider the following factors when determining the “best interests of the child”:

  • The health, safety, and physical and emotional welfare of the child

  • Domestic violence or substance abuse by either parent

  • The quality and quantity of contact with both parents

  • The child’s age

  • Each parent’s ability to care for the child

  • The emotional relationship between each parent and the child

  • The child’s living arrangements

  • The child’s schooling arrangements

  • The child’s social involvement

Lingering Discrimination

Of course, it is always possible that a judge with personal objections to gay parenting may discriminate against a gay parent in child custody proceedings. This will be most likely by framing his or her decision in terms of one or more of the foregoing factors rather than directly admitting that the sexual orientation of one of the parents played a role. This is atypical, but it does happen from time to time.

CKB Vienna Will Help You Fight for Justice

If you are a party to a child custody dispute involving a gay parent (including yourself), if you are even anticipating becoming a party to such a dispute, or if you feel that you have been unfairly discriminated against in such proceedings due to your or the other parent’s sexual orientation, telephone CKB Vienna today or contact us online to schedule a consultation where we can discuss your case. 

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.


Financial Disclosures in Divorce

Financial Disclosures in Divorce

The conventional wisdom is that, in a California divorce, “property is divided 50/50.” While this statement is fairly accurate as a crude approximation, the reality is often far more complex. It gets even more complicated, however, when the marital finances are complicated – after all, you have to know how much a marital estate is worth before you can fairly divide it. California divorce proceedings typically involve certain financial disclosures during the discovery process.

The Discovery Process

The discovery process occurs prior to a trial. In discovery, each party is entitled to demand information from the other party to use as evidence or simply to contribute to the requesting party’s general understanding of the case. A party may demand the production of documents, for example, or he may demand that the other party submit to cross-examination out of court but under oath (known as a deposition). Demands can also be issued to third parties.

If a party refuses to comply with a discovery demand, the party making the demand can ask the court to issue an order compelling compliance. Failure to comply with a court order constitutes contempt of court, which can result in various penalties including jail time.

Typical Disclosures

The following are some of the financial disclosure documents that are routinely demanded during divorce proceedings:  

  • Federal and state tax returns;

  • Pay stubs;

  • Evidence of public assistance payments or entitlements such as social security;

  • Evidence of financial liabilities, such as alimony obligations to an ex-spouse;

  • Bank account statements, including separate accounts;

  • Credit card statements;

  • Personal property inventory (jewelry, for example);

  • Stocks, bonds and other financial assets;

  • Retirement and pension accounts;

  • Deeds and titles to real estate and motor vehicles;

  • Loan statements;

  • Insurance policies, including life insurance; and

  • A list of recurring expenses (car payments, etc.).

Challenging a Financial Disclosure

Every financial disclosure must be accompanied by a signed declaration asserting that it is accurate. Any important and intentional inaccuracies can result in fines, contempt of court and/or criminal charges for perjury. A party can challenge a disclosure in court and seek to prove that it is inaccurate or incomplete through evidence and cross-examination of witnesses.

Types of Lies to Look for

A spouse may lie about:

  • exactly what assets he or she owns;

  • the true value of an asset;

  • the source of an asset (claiming to have inherited an asset so that it is classified as separate property rather than marital property, for example); or

  • the amount of a debt.

In addition to directly lying, a spouse may attempt to conceal information. He may try to suppress documents that would reveal his ownership of an asset. He may even attempt to conceal information about his finances for reasons unrelated to the divorce -- information that would reveal financial misconduct or tax evasion, for example. An experienced California divorce lawyer can help you spot inconsistencies that may be papering over fraud.

Contact Us Today

If you are undergoing a divorce, if you anticipate becoming a party to divorce, and especially if you fear that your spouse is concealing assets from you or that your spouse will accuse you of concealing assets, call CKB Vienna today or contact us online so that we can schedule a meeting to discuss your case. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.


Commercial Real Estate Arbitration in California

Commercial Real Estate Arbitration in California

Arbitration is, quite simply, a “rent-a-judge” procedure whereby a person who is probably not a judge decides a dispute between two parties in a private proceeding. For an arbitration to occur, the opposing parties must agree to arbitrate, either before or after a dispute breaks out. California law supports arbitration, and California courts enforce arbitration awards. An arbitration award cannot be appealed to a court except under limited circumstances. 

Why Commercial Real Estate Arbitration Is So Popular

The arbitration of disputes involving commercial real estate agreements (which include purchase and sale agreements, financing, leasing, and exchanges) is particularly popular in California. It is popular for reasons that can be stated simply enough to place on a bumper sticker: privacy, speed, and thrift:

  • Privacy: Arbitration proceedings need not be open to the public, and they almost never are. 

  • Speed: Arbitration proceedings are almost always completed more swiftly than courtroom lawsuits are.

  • Thrift: Although arbitration does cost money, it generally costs a lot less than courtroom litigation.

Important Matters to Cover in Arbitration Agreements

Below is a very simplified list of some of the concerns you need to address when drafting an arbitration agreement:

  • Include an arbitration clause within the transactional contract itself – a real estate sale and purchase agreement, for example.

  • Provide that the parties specifically agree to arbitrate any dispute arising out of the transaction, and agree that any award cannot be appealed.

  • Take great care selecting the arbitrator. Retired judges are usually a good bet.

  • Remember that, if you don’t mention evidence, the arbitrator is free to set his own rules of evidence.

  • The discovery process (the process whereby a party can compel the production of evidence from the opposing party or a third party) should be specifically allowed.

  • The arbitrator must be authorized to enter the award as a court judgment so that it can be enforced by a court if necessary.

Some Unintended Consequences of Poorly Drafted Arbitration Agreements

Little things matter when drafting an arbitration clause. A poorly drafted arbitration clause could result in the following unintended negative consequences, among many others:

  • Unenforceability of the compulsion to arbitrate, or to the enforcement by a court of any arbitration award issued by the tribunal.

  • The inability to utilize the discovery process could cripple your ability to gather relevant evidence that is in the possession of the opposing party. This is especially likely to cause you to lose the case if you carry the burden of proof (as a plaintiff, for example).

  • If the arbitrator is not required to comply with the California Evidence Code, or any particular evidence standard at all, it could result in an avalanche of irrelevant or misleading evidence and general unfairness in the proceedings.

Consult with the Professionals

If you are involved in a real estate dispute that is likely to be resolved through arbitration, you are contractually bound by an arbitration agreement, you are considering whether to sign an agreement containing an arbitration clause, or you would like to know how to draft a solid arbitration clause, call CKB Vienna ASAP or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Construction Site Accidents and the California Privette Doctrine

Construction Site Accidents and the California Privette Doctrine

The California Privette doctrine, an example of judge-made law, established the general principle that project owners and higher-tiered contractors do not bear liability for worksite injuries suffered by employees of subcontractors. A property owner enjoys a qualified immunity from liability to an injured employee of one of his subcontractors, even if the accident occurred at a worksite he owns. 

Exceptions to the Privette Doctrine

Over the last 25 years, California courts have been busy carving out exceptions to the Privette doctrine. The following is a description of some of the major exceptions.

The Retained Control Exception

Under the retained control exception, a defendant higher-tiered contractor (who did not directly hire an injured employee) can be subjected to liability if:

  • the defendant retained control over part of the work; 

  • the defendant exercised that control in a negligent manner; and 

  • the defendant’s negligence affirmatively contributed to the employee’s injury.

The retained control exception might apply, for example, if a general contractor’s contract with the site owner charged the general contractor with overall responsibility for the safety of the site. The general contractor promised to undertake certain safety measures, the general contractor failed to undertake these measures yet claimed to have done so, and a subcontractor’s employee was thereby injured.

The Non-delegable Duty Exception 

Under the non-delegable duty exception, a defendant higher-tiered contractor can be subjected to liability if (i) the defendant was charged with a non-delegable duty; (2) the defendant breached that duty; and (3) the breach affirmatively contributed to the employee’s injury.

So which duties are delegable and which are non-delegable? An owner or contractor can delegate duties that are related to the work specified in his contract with the lower-tiered contractor who hired the injured employee, but generally not other duties. Consequently, the non-delegable duty exception might apply if a property owner fails to repair or provide notice of a concealed dangerous condition on his property, and that condition caused the injury.

Providing Defective Equipment

An owner or higher-tiered contractor can also be held liable for supplying defective equipment to a subcontractor if a malfunction of that equipment caused the injury that the subcontractor’s employee is complaining of.

Why You Might Be Targeted for a Lawsuit

If the Privette doctrine does not apply due to an exception, an injured employee can file a civil lawsuit against an owner or general contractor, as opposed to filing a workers’ compensation claim. The potential advantage in doing so is that the injured employee will become eligible for “pain and suffering” damages, which are not offered in workers’ compensation claims. Pain and suffering damages are often substantial, thereby providing a powerful incentive to sue.  

It’s Never Too Early to Seek Legal Advice

If you are concerned about your company’s liability under the Privette doctrine, if an injured employee is attempting to hold you liable for a worksite injury, or if you are attempting to shift liability for a worksite injury to another possible defendant, call CKB Vienna today or contact us online to schedule a meeting with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Is Mental Illness Considered a “Disability” That Requires Accommodation under California Employment Law?

Is Mental Illness Considered a “Disability” That Requires Accommodation under California Employment Law?

It is well known that both federal and state laws require certain employers to accommodate employees with disabilities under certain circumstances. This legal requirement has revolutionized the lives of many disabled individuals, rendering formerly “unemployable” people productive members of the nation’s workforce, to the advantage of both the affected individuals and the public at large.

What is less well known is that both California and federal law requires employers to accommodate certain mental disabilities as well. Since federal law applies along with state law throughout the state of California, employers must be sure to comply with both laws. If they directly conflict with each other, of course, federal law prevails.

The ADA and “Psychiatric Disability”

The Americans with Disabilities Act (ADA) forbids a private employer with at least 15 employees from discriminating against certain disabled individuals with respect to job applications, hiring, promotions, discharge, compensation, training, and other terms of employment. Although the term “disability” is defined broadly enough to include psychiatric conditions, not every mental illness is considered a “psychiatric disability.”

About 18 percent of US employees report suffering from a mental health condition such as PTSD, depression, ADD, or bipolar disorder. The term “mental illness,” however, is a medical term, while “psychiatric disability” is a legal term. Under the ADA, a “psychiatric disability” is a “mental impairment that substantially limits one or more major life activities.” This definition could be interpreted to include some impairments that would not qualify as mental illnesses. 

Privacy

Subject to certain exceptions, a person with a psychiatric disability enjoys a privacy right to refrain from disclosing the existence of his condition during the hiring process. An employer is also prohibited from requiring an employee from disclosing a psychiatric disability after he has been hired. Of course, it is likely to be necessary for an employee to disclose his condition when requesting accommodation.

The California Fair Employment and Housing Act and “Mental Disability”

The California Fair Employment and Housing Act (FEHA) applies to employers with at least five employees. It requires employers to provide “reasonable accommodation” to people with a “mental disability” in the job application process as well as the performance of the essential functions of the job. An employer can be excused from this requirement to the extent that such accommodation would cause “undue hardship.” 

For example, an employer might be required to:

  • Change the employee’s job duties;

  • Offer medical leave;

  • Modify the employee’s work schedule;

  • Change the employee’s work location; or

  • Provide the employee with mechanical or electrical aids to help him work with his disability.

The Limits of “Reasonable Accommodation” Under Federal and State Law

Neither California nor federal law require employers to hire applicants, or to retain employees, whose disabilities prevent them from performing the essential features of the job even with reasonable accommodation. Furthermore, accommodation needs only to be “reasonable.” Although the term “reasonable” is ambiguous, it is likely to require something less than the maximum possible accommodation.

Contact Us for Sound Advice

If you are concerned about your company’s obligations under the Americans With Disabilities Act or the California Fair Employment and Housing Act, your concern is probably well-founded. CKB Vienna has been dealing with these issues for its clients for a long time now, and we’d like to help. Call our nearest office or contact us online to schedule a consultation. 

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Marijuana and California Employment Law

Marijuana and California Employment Law

California cannabis law is changing rapidly, and that change includes the laws relating to its application in an employment context. Much of this new law is being created by the courts, not the legislature. Cannabis law is a unique legal minefield, because its medical and recreational use is legal (although restricted) under state law, and yet it remains illegal (although unenforced) for both purposes under federal law. 

The Current State of the Law

As it stands now, there is no California or federal law that prevents an employer from firing an employee simply for using cannabis, regardless of whether that use is for recreational or medical purposes. In 2018, a bill was introduced that would require an employer to accommodate medical marijuana use by an employee; however, this bill has stalled and may never pass. Obviously, there is no federal law requiring employers to accommodate cannabis use by an employee for any reason whatsoever. 

Pitfalls for the Unwary

As is often the case with legal principles, little is cut and dry. And oversimplifying matters could result in getting tripped up by hidden complexities. For example:

  • Suppose an employee tells you that he used medical marijuana to treat depression. Although you might be able to fire the employee if he continues using cannabis to treat this condition, as long as he is still your employee, you will be required to accommodate the underlying conditions (depression) even if you don’t tolerate your employee’s preferred treatment (medical marijuana).

  • California law requires employers with 25 or more employees to accommodate drug and alcohol rehabilitation. This could be interpreted to include “cannabis rehabilitation.”

  • Suppose you discover that two of your employees are using cannabis and you fire one but not the other. Under certain circumstances (racial diffeence between the fired emplyees, for example), you could perhaps be sued or otherwise sanctioned for discrimination.

Drug Testing

In principle, California employers are allowed to test their employees for cannabis along with other drugs that are illegal even in California. Care is advised, however, under certain circumstances, to avoid falling afoul of privacy or discrimination laws. The safest way to test an employee for cannabis use is upon reasonable suspicion. An employer is also permitted to test job applicants for cannabis prior to hiring them.

Random drug tests of current employees are relatively dangerous for employers, although they are not absolutely prohibited under every circumstance. The legality of a drug test is based on a balancing of an employee’s right to privacy versus the employer’s right to maintain a drug-free workplace. As such, an employer can justify random drug tests if the employee works in a “safety-sensitive” position where drug intoxication would pose an imminent health or safety threat with “irremediable consequences.”

Act Promptly and Decisively

If you are an employer or an employee with questions about your rights and liabilities with respect to cannabis use, call CKB Vienna today or contact us online so that we can schedule a meeting to discuss your case and answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Which Factors Most Influence California Child Custody Cases?

Which Factors Most Influence California Child Custody Cases?

Perhaps as many as half of all California adults will become a party to a child custody proceeding at some point in their lives. The stakes couldn’t be higher, because the well-being of both the child and the parents are likely to be greatly affected by the outcome. Although, once upon a time, California family judges gave preference to the mother when making custody decisions, this is no longer the case – at least in theory.

The “Best Interests of the Child” Standard

The “best interests of the child” standard means the health, safety, well-being, and happiness of the child. It is the California family law principle to which all other considerations are subordinate (including parental rights). Any factor that might influence a California child custody case is judged primarily in terms of how it impacts the best interests of the child. 

Subordinate Factors

Factors that might influence a judge’s determination of which custody arrangement would most effectively protect the best interests of the child include:

  • The age of the child: Physical custody will be granted to the mother of a nursing child. Beyond that, there are a few judges who still give the mother a greater preference the younger the child is.

  • The child’s preference: The child’s preference is given greater weight as he or she gets older. Nevertheless, it is not necessarily decisive. The term “best interests” doesn’t necessarily mean what the child wants, but what is in the child’s long-term best interests.

  • Stability: If the family home was awarded to one parent, for example, a judge might grant primary physical custody to that parent, so that the child will not have to change residences after the divorce.

  • Cooperation between the spouses: If one parent is cooperative and one parent is competitive or antagonistic, the cooperative parent is likely to be favored in a custody decision.

  • Each parent’s relationship with the child: A parent with little interest in the child prior to custody proceedings, who suddenly develops an intense interest, is likely to be thought to be motivated by competitive animus towards the other parent rather than authentic concern for the child.

  • Abuse or neglect: A parent found guilty of abuse or neglect of the child or even another child, will be at a great disadvantage in child custody proceedings.

  • Substance abuse by  a parent: A history of substance abuse by either parent will put that parent at a distinct disadvantage in custody proceedings.

  • Lifestyle: The lifestyle of a parent will be considered to the extent that it might affect the child’s lifestyle. A parent who works that “graveyard shift,” for example, may be disfavored for physical custody because of the way that the parent’s lifestyle might affect the child’s sleep/wake cycle on school nights. 

Contact CKB Vienna Today

If you anticipate becoming a party to a child custody disputes, or even involved in custody proceedings that have the potential to become contentious, call CKB Vienna today or contact us online to schedule a meeting where we can discuss your case. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Is It Legal to Rent Your Property on AirBnB?

Is It Legal to Rent Your Property on AirBnB?

AirBnB arranges short-term rentals (typically between one day and one month) in private homes throughout the world. The rise of AirBnB has been controversial for more than one reason. Hotels obviously do not like it because of the competition it represents, of course. Long-term residents often object to AirBnB rentals, because if an AirBnB home is located in their neighborhood, they never know who their neighbors will be from day to day.  

As a consequence of this controversy, local governments have been regulating AirBnB rentals. The rules vary from locality to locality – there is no statewide set of regulations. The following is a sample of some of the regulations that local governments have enacted concerning AirBnB and companies like it. Remember, however, that these regulations are changing rapidly, and some of this information may be outdated by the time you read it.

These Three Rules Almost Always Apply

Three rules concerning AirBnB are likely to apply to you no matter where you are in California:

  • If you are renting an establishment, you almost certainly cannot sublet it to an AirBnB guest. Even if this practice is legal under local law, it is almost certainly a violation of your lease.

  • You cannot place a camera inside the residence to monitor the activities of your guests. You can, however, film exterior areas such as the front yard.

  • Almost all jurisdictions require hosts to register with the local government, and most of them will charge a steep “hotel tax.”

A Sample of Local Regulations

The following is a brief summary of some of the regulations that apply in the Los Angeles metro area:

Los Angeles: Hosts must use the residence as their own primary residence (they must live there for at least six months a year), and they may rent out their homes for up to 120 days per year, subject to a local hotel tax. Experienced hosts are sometimes allowed to exceed this limit for an extra $850 fee. Housing that is under rent stabilization or that has been classified as “affordable housing” cannot be rented out on AirBnB. 

Santa Monica: The minimum rental period for a full unit is 30 days, but you may rent out a single room for less than 30 days. A 14 percent hotel tax applies.

Unincorporated LA County: Single family homes can be rented to up to four guests, but a hotel tax of 12 percent applies. Check with the Department of Regional Planning for renting out a multi-family home.

Consult with Us before You Act

If you are considering renting out your home to guests with AirBnB or a similar service provider, consult with CKB Vienna first so that you will understand not only the local law that pertains to you, but also the legal risks you may face in a fast-changing regulatory environment. 

Telephone us at 909-980-1040, or contact us online to schedule a consultation with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Information Must Be Contained in an FTC Buyer’s Guide?

What Information Must Be Contained in an FTC Buyer’s Guide?

Federal law requires every dealer of used cars to place a Buyer’s Guide in a conspicuous place in or on the car. Federal law also mandates the content of the Buyer’s Guide, and the required content keeps changing as the law is amended. The most recent amendment of the Buyer’s Guide requirement became effective on January 27, 2018. 

You need to keep current on the state of the law, because the Federal Trade Commission can impose serious penalties on dealers who fail to comply with it.

Buyer’s Guide Requirements

Space does not permit a full listing of every detail of federal Buyer’s Guide requirements. Nevertheless, some of the more salient aspects of the law include:

  • The Buyer’s Guide must be conspicuously placed the moment you display the car for sale or allow a prospective customer to inspect it. This rule applies even if the car is not yet prepared for delivery. 

  • The Buyer’s Guide requirement also applies to used cars sold at public auctions. Motorcycles, vehicles sold under a Salvage Certificate, and agricultural equipment (such as tractors) are exempt from the Buyer’s Guide requirement.

  • The Buyer’s Guide must be posted conspicuously. “Conspicuously” means (i) hanging from the rear-view or side-view mirror); under a windshield wiper; or attached to a side window.

  • As of January 27, 2018, used cars sold “as-is” must now display the designation “AS IS – THE DEALER DOES NOT PROVIDE A WARRANTY FOR ANY REPAIRS AFTER SALE.” Remember to use upper case letters.

  • If the car is not being sold “as is,” you must include a notification of the type of warranty that is offered: (i) a dealer’s full warranty or (ii) a limited warranty. In the latter case, the dealer must disclose which systems are covered as well as the duration of coverage.

  • A notification of any non-dealer warranty offered with the car, including any manufacturer’s warranty, manufacturer’s used vehicle warranty, and any other used vehicle warranty must be included.

  • The Buyer’s Guide must state whether a service contract is available.

  • Any “major defects” must be listed and described, and the 2018 amendments require any defects in airbags or catalytic converters to be listed as “major defects.”

  • Prospective buyers must be advised to obtain a vehicle history report and to check for any open recalls. The guide must also provide the URL for (i) the FTC web page that contains information on how to obtain a vehicle history report (ftc.gov/usedcars) and (ii) the web page that allows prospective buyers to check for open safety recalls (safercar.gov).

  • If the dealer conducts the sale in the Spanish language, a Spanish-language notification, advising prospective buyers to ask for a Spanish language Buyer’s Guide, must be included. 

If you chose to, you can include a signature line on the Buyer’s Guide so that the customer can sign for receipt of the guide (this is a very good idea, by the way). If you include a signature line, you are also required to include the statement “I hereby acknowledge receipt of the Buyers Guide at the closing of this sale” above the signature line (in Spanish if the sale was conducted in Spanish).  Use this exact wording.

Contact CKB Vienna for Sound Legal Advice

Any dealer who sells at least six used cars per year is subject to the Buyer’s Guide requirements. If you are concerned about how to comply with federal or state regulations of used car dealers, or if you are involved in a related dispute or administrative action, contact CKB Vienna by calling 909-980-1040, or by contacting us online us online to schedule a consultation with us. 

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Should You Do If ICE Visits Your Work Site

What Should You Do If ICE Visits Your Work Site

At some point, it is quite likely that you are going to receive some uninvited guests at your workplace – from Immigration and Customs Enforcement (ICE). The stakes will be high, and the consequences of mishandling this visit could be unpleasant. If this happens, you will be walking a tightrope, so to speak, because federal policy and state law, although not directly contradictory, are at odds with each other on the matter of workplace immigration enforcement.

Federal Immigration Law vs. California’s Immigrant Worker Protection Act

California’s Immigrant Worker Protection Act (AB 450) imposes obligations on employers that are designed to protect California employees from certain immigration enforcement activities. It is unquestionably antagonistic to current federal immigration enforcement policy. Under AB 450:

  • Even though federal law allows ICE to access your nonpublic work areas and inspect your business records as long as you consent to it, California law does not permit you to grant this consent. You are not breaking federal law by refusing to consent – simply inform ICE agents that state law prohibits you from consenting to their request.

The only exception to this rule is that state law permits you to comply (and federal law requires you to comply) if ICE presents you with a judicial warrant or subpoena issued by a court. ICE documents alone are not sufficient to immunize you from liability for allowing ICE officials to enter nonpublic work areas or access business records.

  • If an ICE agent shows you an ICE Notice of Inspection, don’t be intimidated by it. This notice allows ICE to access Forms I-9, payroll records, a list of current employees, articles of incorporation, and business licenses three days after you are presented with the notice. It does not allow ICE agents to enter nonpublic work areas or access records immediately.

  • Within 72 hours after you receive an ICE Notice of Inspection, AB 450 requires you to post a notice to all of your current employees, notifying them of ICE’s inspection of the foregoing documents.

  • Within 72 hours after the inspection concludes, you must provide every employee, upon whom suspicion has been cast, a copy of the results of the inspection along with a written notice of your obligations as well as the affected employee’s obligations as a consequence of the inspection.

Make Sure Your Employees Know the Rules

Your company could get into legal trouble with the state government if any of your employees fails to comply with AB 450 by, for example, voluntarily granting ICE access to your nonpublic work areas. You need to train your employees on how to comply with both state and federal law and how to recognize when an ICE agent does and does not present the proper documentation to allow an inspection.

 Since the penalties for noncompliance with either state or federal law can be significant  ($10,000 per violation of AB 450 and $110 to $20,000 for violation of federal I-9 regulations), it is best to prepare in advance so that no violation occurs in the first place.

Consult with the Professionals

If you are concerned about how to respond to a visit from ICE, and if you would like to prepare in advance with full knowledge of your rights under federal and state law, call CKB Vienna at 909-980-1040, or contact us online to schedule a consultation with us so that we can answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Are the New Rules on Workplace Sexual Harassment?

What Are the New Rules on Workplace Sexual Harassment?

California, always a pioneer when it comes to workplace sexual harassment law, has enacted additional legislation that went into effect on January 1, 2019. Companies need to be aware of this new legislation in order to revise their policies and update their employee handbooks to reflect the changes. Failure to do so could result in unacceptable liability, especially for small companies with limited financial resources. The following is a summary of the new legislation.

  • Expanded Definition of Sexual Harassment: The legal definition of sexual harassment has been expanded by SB 1300, which broadened the legal definition of “hostile work environment” sexual harassment to include even a single incident. This is as long as the incident significantly interfered with the employee’s performance or resulted in an “intimidating, hostile or offensive” work environment.

Prior to 2019, employers were already potentially liable for sexual harassment of an employee, intern, applicant, or contactor by a nonemployee (a client, for example). SB1300 expands this liability to include conduct based not only on gender but also on other protected characteristics such as race or religion.

  • Complaint Procedures: The new legislation grants employees a limited right to share information about harassment complaints with certain parties such as witnesses and victims.

  • Defamation Lawsuit Restrictions: An employee who is fired for sexual harassment might be tempted to use his former employer as a reference. Before AB 2770 came into force this year, many employers would hesitate before informing a potential new employer that the employee is ineligible for rehire due to sexual harassment allegations. This is because they feared that their ex-employee might file a defamation lawsuit against them. AB 2770 prevents an ex-employees from filing such a lawsuit.

  • Restrictions on the Content of Nondisclosure Agreements: SB 820 provides that employers may not include a clause in a settlement agreement that prevents employees from disclosing information regarding certain sexual assault, sexual harassment, harassment, or sex discrimination claims if the employee, signing the settlement agreement, has already filed a lawsuit or an administrative complaint.

This new legislation apparently does not restrict the content of a settlement agreement entered into before a formal claim has been filed.

  • Settlement Agreement Restrictions: Except in a lawsuit settlement agreement, employers can no longer force their employees to waive their harassment claims, nor can they force employees to agree to “gag orders” preventing them from discussing harassment. An employee is considered to have been forced if compliance is made a condition of employment or on the receipt of a raise or bonus.

  • Sexual Harassment Prevention Training: Sexual harassment prevention training requirements have been expanded to include companies with as few as five employees (including temporary workers). The law requires at least two hours of training every two years for supervisors and one hour every two years for non-supervisory employees. The law will also require the retraining of employees who were trained before 2019.

Contact CKB Vienna for Candid, Practical Advice

If you are concerned about how your company should react to California’s new sexual harassment legislation, we can help you formulate an action plan based on your company’s individual circumstances. Call CKB Vienna at 909-980-1040, or contact us online to set up an appointment to speak with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Can Dating during a Divorce Hurt My Case?

Can Dating during a Divorce Hurt My Case?

Strictly speaking, there is no California law that will disadvantage you in divorce proceedings simply because you are dating someone else. If your divorce is contentious, however, it is possible that anything you do will be used as ammunition by your spouse or their lawyer – and dating during a divorce could, under certain circumstances, be used against you. From a practical standpoint, the answer to this question is that usually it doesn’t matter, but sometimes it does.

“No-Fault” Divorce

Technically, dating before your divorce has been finalized is considered adultery. Without more, however, adultery is irrelevant because California is a “no-fault” divorce state. The only two grounds for divorce are incurable insanity and irreconcilable differences, and neither of these two grounds implicate fault.

The “Best Interests of the Child” Standard

One way that an allegation of “fault” could get in through the back door of a California divorce proceeding is through the “best interest of the child” standard. Under this standard, child custody and child support issues are decided based on the best interests of the child, even at the expense of parental rights, if necessary.

Dating, Child Support, and Spousal Support (Alimony)

Child support and spousal support are based on the needs of the respective recipients (the child and the ex-spouse), not the conduct of the parties involved. As such, in most cases, dating in divorce proceedings will not affect the amount of child support or spousal support that either party is awarded. It still might be possible, however, in unusual cases.

Dating and Child Custody

Under the best interests of the child standard, your conduct or character is relevant only if it affects the child’s best interests. Simply dating a new partner is not considered an offense against the child’s best interests. It might matter, however, if your new partner has a serious criminal record, because that might call your judgment into question. It might also matter if your new partner frequently speaks ill of the other spouse in front of your child.

Dating and Property Division

California is a community property state, which means (in oversimplified terms) that both spouses own all economic assets acquired during the marriage, no matter who earned them or paid for them. Upon divorce, assets are generally split equally between the divorcing spouses.

Although dating will not normally affect property division, under certain circumstances, it might. Suppose, for example, that you lavish your new partner with expensive gifts paid for out of assets that are considered community property. This could be used by your spouse to argue that they are entitled to more than 50 percent of the remaining community property.

We’ve Seen It All Before

At CKB Vienna, there is not much that can happen in a divorce proceeding that we haven’t handled successfully many times before. If you are involved in divorce proceedings or if you anticipate a divorce, call us at 909-980-1040 or fill out our online contact form to schedule a consultation where we can answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside Co

How Can I Resolve Child Custody Issues Without Going to Court?

How Can I Resolve Child Custody Issues Without Going to Court?

Nobody likes to battle it out in court, especially when the subject of the dispute, child custody, is an issue that is fraught with intense emotions. Fortunately, California offers a more amicable way to settle child custody issues – the custody agreement. A custody agreement is negotiated between the two parents, sometimes alone and sometimes with the assistance of a third-party mediator.

The “Best Interests of the Child” Standard

The guiding principle behind California family court child custody decisions is the “best interests of the child.” This principle supersedes even parental rights, and a family court will reject a custody agreement if its terms do not reflect the child’s best interests. Although the child’s “best interests” do not always coincide with what the child wants, the child’s own preference is given greater weight as he gets older.

Child Custody Mediation

In contentious custody disputes, the parents might not be able to reach an agreement on their own, and yet both parents might still prefer to reach some kind of agreement rather than rely on the court to issue a child custody order. In cases like this, California offers mediation services that are designed to help the parents reach an agreement that they might otherwise find themselves unable to reach.

A mediator is a third party, trained in the art of mediation, whose job it is to help the parties reach an agreement. A mediator can propose solutions to various issues, but he cannot impose an agreement on the parties. If the parties do sign an agreement, it will become binding as soon as the court approves it. If the court doesn’t approve it, either another agreement will have to be negotiated or the child custody issue will have to be resolved by court order.

Child Custody Agreements

A child custody agreement must be created in written form, and it must be signed by both parents – a handshake is simply not enough. Although it is possible for the parents to draft an agreement themselves, this is not a particularly wise course of action because:

  • Innocent-sounding wording could result in unintended legal consequences (that might escape even the scrutiny of a busy family court judge); and

  • A custody agreement might fail to address certain contingencies that a lawyer would think of but the parties didn’t anticipate. Suppose, for example, that one parent is offered a job out of state six months after the agreement is signed. A well-drafted custody agreement might be flexible enough to take this circumstance into account, and it could save the parties the trouble of going back to court for a modified custody order.

Remember to take the terms of a child custody agreement very, very seriously. Violating the terms of a confirmed and effective child custody agreement could put you in contempt of court – an offense that might even result in jail time.

Contact CKB Vienna Today

If you are involved in a child custody dispute or if you anticipate such a dispute arising, call CKB Vienna at 909-980-1040 or contact us online to schedule a consultation with us. We take cases for clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How Does California’s “Right to Repair” Act Work?

How Does California’s “Right to Repair” Act Work?

The term “planned obsolescence” refers to a state of affairs in which consumer goods are specifically designed with short life spans, in order to compel consumers to make further purchases several years down the road, at the expense of the consumer and to the benefit of the seller.

A corollary to planned obsolescence is the practice of making it difficult for a consumer to repair an item that is broken – he must either replace it with a new item or take it back to the dealer or repair shop for an expensive repair. The California lemon law is an example of this approach. California’s “right to repair” bill is designed to remedy this situation so that consumers can repair their property on their own.

The Problem

Manufacturers are in business to make money, and they make more money by repairing something they manufactured than by providing you with the tools to perform your own repairs. Consequently, manufacturers have traditionally obstructed consumer self-repair efforts by blocking access to spare parts and repair information.

This state of affairs has triggered a growing movement among state legislatures to introduce “right to repair” bills. California’s version, the 20th to be introduced nationwide, is called AB 1163. In a nutshell, AB 1163 is designed to make it easier for consumers to repair their products by closing a loophole in the state’s warranty law.

Current California Law

California law long ago addressed the problem of manufacturers attempting to block consumer access to repair resources so as to force them to purchase a brand-new product as soon as the old one needs repair. The problem is that existing California law contemplates that the consumer will take the product to a repair facility (not necessarily one that belongs to the manufacturer, however).

Under current California law, a manufacturer that makes an express product warranty:

  • With respect to an electronic product or appliance with a wholesale price of between $50 and $99.99, must provide repair facilities with sufficient information and spare parts to allow them to repair the product for 3 years after the date of manufacture, regardless of the length of the warranty.

  • With respect to an electronic product or appliance with a wholesale price of $100 or more, must provide repair facilities with sufficient information and spare parts to allow them to repair the product for seven years after the date of manufacture, regardless of the length of the warranty.

What AB 1163 Would Do

AB 1163 would reform the product repair system by requiring the manufacturer to supply information and spare parts directly to product owners as well as repair and service facilities. Service information would be provided free of charge, while spare parts would have to be supplied on fair and reasonable terms. AB 1163 would also expand the category of products to which these provisions apply.

Contact CKB Vienna Today

If you have questions about California’s “right to repair” act and would like to know how your company can mitigate its risks in the face of a shifting legal landscape, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Is a “Willful” Violation under California’s Contractor Enforcement Statutes?

What Is a “Willful” Violation under California’s Contractor Enforcement Statutes?

The California Business and Professions Code contains rules that are designed to regulate the activities of people engaged in private businesses and licensed professions. Some of its provisions apply to building contractors. Unfortunately for those who seek to comply with the law, the wording of certain sections is so vague that it is necessary to refer to court decisions to interpret it.

The California Business and Professions Code Sections 7109 and 7110

Sections 7109 and 7110 of the California Business and Professions Code can be summarized, in pertinent part, as follows:

  • A contractor who “willfully” departs from accepted trade standards or plans and specifications violates Section 7109 of the California Business and Profession Code, unless such plans and specifications were approved by the architect..

  • A contractor who “willfully” fails to comply with state or local building codes or certain health, safety, water, or labor laws violates Section 7110 of the California Business and Profession Code, even if such plans and specifications were approved by the architect.  

Violation of either of these sections can result in sanctions being imposed on the contractor by the Contractors State License Board as well as civil liability.

“Willful” vs. “Deliberate”

What, then, constitutes “willful” non-compliance? Intentional non-compliance with the law and in derogation of plans and specifications approved by the building inspector certainly qualifies as “willful.” But beyond that it gets murky, at least if you rely solely on the stator language to guide you. The California judiciary, however, has provided clarification.

In ACCO Engineered Systems, Inc. v. Contractors State License Board, the California Second District Court of Appeals ruled that a contractor’s failure to comply with applicable building codes was “willful” even if it was not “deliberate,” because they intentionally performed an act without actual knowledge that it was illegal. In other words, the contractor’s negligent failure to ascertain whether or not an action is legal still counts as a “willful” failure to comply with the law.  

Reliance on Building Inspector Approval

Is a contractor shielded from liability as long as they strictly comply with plans and specifications approved by the state building inspector? Disturbingly, the answer is no. This is even though the building inspector, as a public official, is normally shielded from liability for approving plans and specifications that are not code compliant.

The contractor’s liability is based on the construction contract, which will almost certainly require the contractor to complete the contracted work in a manner that complies with applicable building codes and the requirements of the building inspector. If these two requirements conflict, it is the requirements of the building inspector that must yield, not code requirements. The risk of non-compliance is thereby shifted from the owner and the architect to the contractor.

Take Action Today

If you have questions about California’s contractor enforcement statutes, or if you have been accused of violating one of them, call CKB Vienna today or contact us online to schedule a consultation with one of our experienced construction attorneys. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.