Publications Archives

Do Watts Have Anything to do with Lightbulbs?

In a proceeding for the dissolution of marriage or legal separation, there is an opportunity for reimbursement to the community when one of the parties has the sole and exclusive use of an asset while the matter is pending and until a division of the asset is finalized. The reimbursement would be for the reasonable value of the usage. The asset is typically a residence, but can also be a car or other asset. This reimbursement is often referred to as a "right of reimbursement," but that is a misnomer because the reimbursement is discretionary to the Court. The reimbursement issue derives its name from an appellate decision set forth in re Marriage of Watts, (1985) 171 Cal. App. 3d 366.

Measuring Damages Paid by Insurance

By: Paul T. McBride

The collateral source rule provides that when a plaintiff's injuries are paid for by insurance, a jury may not be told about the insurance payments. Instead, the plaintiff may recover the full cost of medical treatment provided to him without any reduction for the fact that an insurance company, rather than the plaintiff, paid the medical bills. The rationale for this rule is that the defendant, who caused the injury, should not be allowed to benefit from the fact that the injured plaintiff happened to have insurance. Accordingly, the defendant must pay to the plaintiff the full cost of the medical services provided, even though some or all of the services were paid for by the plaintiff's insurance company.

Recovery Against a Contractor's Surety Bond

Today's economic environment has created challenges in construction, particularly for subcontractors. The construction industry recession has led to insolvency of builders and general contractors. When builders do not pay subcontractors, remedies available for a subcontractor become challenging. Typically, a subcontractor has no contractual relationship with the owner as it contracts only with a general contractor. Absent a proper lien (Preliminary 20-day Notice), a subcontractor has few remedies against the owner.

New Law Prohibits Second Mortgage Lenders From Pursuing a Deficiency After an Approved Short Sale

Homeowners who are "upside-down" on their loans and want to avoid foreclosure recently received a tremendous benefit from California Governor Jerry Brown. On July 15, 2011, Senate Bill 458 was signed into law extending the anti-deficiency protections of Senate Bill 931. Senate Bill 458 prohibits any deficiency judgment to be requested or rendered for senior or junior liens after a Short Sale of one-to-four residential units.

Modified Comparative Negligence in Nevada

Nevada follows a variation of the Modified Comparative Negligence Theory, which is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. Specifically, Nevada Revised Statutes ("NRS") 41.141(a) states in relevant part:

Employee Severance Required?

In California, there is no legal requirement that an employer pay severance to its employees upon termination of employment. However, should an employer implement a written or verbal policy regarding severance or mention a set scale for severance in its employee handbooks, manuals or company memos, then such policies and programs may be construed as a contract between the employer and its employees regarding severance.

A Safe and Sober Message About Workplace Parties

Workplace parties typically mean lots of music, food and drinks. If the drinks include alcohol, the potential for unfortunate consequences greatly increases. Opinions vary regarding the appropriateness of making alcoholic beverages available at workplace parties or other company-sponsored events. Ignoring the possibility that some employees or guests may drive home "under the influence" invites trouble, according to the U.S. Department of Labor's Impaired Driving.

U.S. Supreme Court Shields Wal-Mart from Gender-Bias Class Action Lawsuit

In the most important job-bias case in a decade, Wal-Mart Stores Inc. v. Dukes, the U.S. Supreme Court has dismissed a class action lawsuit of 1.5 million female employees suing Wal-Mart Stores Inc. for gender-based employment discrimination. The lawsuit was first filed in 2001 and aimed to cover every woman who worked at any of the 3,400 Wal-Mart and Sam's Club stores nationwide since 1998. While this historic ruling does not absolve Wal-Mart of its sex-discrimination allegations, it has clearly made class-action discrimination claims much harder to pursue and has altered the power balance between employers and employees. Had the case proceeded and the workers won, Wal-Mart could have faced billions of dollars in back pay and punitive damages as the world's largest employer. However, the Court's ruling has largely eliminated the monetary threat facing big employers and is likely to significantly impact other gender class-action suits, such as the pending case against Costco Wholesale Corp. The decision is the latest in a series of corporate-friendly Supreme Court rulings under Chief Justice John G. Roberts, Jr. The conservative high court majority has been continuously guarding businesses from class actions, including in AT& T Mobility v. Concepcion, an April case regarding a California class action suit against AT&T Inc.

U.S. Department of Labor's Latest App: Sue with Your Smartphone

The United States Department of Labor recently launched its first smartphone application-one that will arguably lead to more wage and hour lawsuits by employees. Available in English and Spanish, the new timesheet app allows employees to track their work hours, including break time and overtime, and the wages their employers owe them. Users can add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. In addition, links to the Web pages of the department's Wage and Hour Division provide easy access to a glossary, contract information, and materials about wage laws.

Overview of the Divorce Process

This article will provide an overview of the divorce process (more properly referred to as "dissolution"). The general process is the same, whether the divorce is amicable (uncontested) or litigated (contested). The contested divorce will generally involve more extensive discovery, court appearances, and usually a trial.

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