Appeals Court Upholds California Death Penalty

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On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

Medical Board of California Fall, 2015 Newsletter

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The Medical Board of California (MBC) has just published its latest edition of its quarterly Newsletter, and for convenience we are including the link:  Newsletter Fall 2015

There are various sections of particular interest as follows:

A.   Answers to a series of questions that have recently been asked by physicians relating to subjects such as the renewal of your medical license; the requirements for utilizing and/or operating a practice in a name or entity other than one’s own (with the exception of adding Inc. after your true legal name) and the process of applying for a fictitious name permit; guidelines for prescribing pain medications; and the reporting of arrests even though a conviction has not yet occurred.

B.   An update on CURES 2.0 (Controlled Substance Utilization Review and Evaluation System) regarding the registering requirements in order for a physician to order, prescribe,  furnish, dispense, or administer Schedule II, Schedule III, or Schedule IV controlled substances.

C.   A section on the compliance requirements of Business and Professions Code 805.1  that mandates the reporting by health care facilities and clinics in a case involving the  restriction (for a cumulative total of 30 days or more for any 12-month period) of a physician’s staff privileges, membership or employment; an allegation that a physician has (1)  engaged in sexual misconduct of a patient during an examination or treatment; (2)  prescribed,  administered or used a drug or alcohol to or on him/herself that is either harmful or dangerous to the physician or the public, or impairs the physician’s ability to safely practice medicine;  (3) prescribed, furnished or administered controlled substances to a patient without a medical reason; (4) departed  from the standard of care in the practice of medicine that evinces gross negligence or incompetence and results in serious bodily injury to or the death of a patient.

D.   A detailed explanation and list of tasks that both are and are not permitted relating to the scope of practice of medical assistants.

E.   The subject of medical records, and patient rights.

F.   A list and summary of disciplinary actions taken by the MBC for the period of May through July 31, 2015.  And,

G.  The 2016 schedule of meetings as well as important telephone numbers and contact information for the MBC.
It is hoped the above will be of assistance, however, if you have any questions regarding the California Medical Practice Act, the rules and regulations, as well as the subject of investigations and/or disciplinary actions by the Medical Board of California , whether you reside or practice in or outside of the State of California, feel free to call Sam Spital, Managing Attorney at Spital and Associates, 619.583.0350

Renewal of Professional and Occupational Licenses

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The California Department of Consumer Affairs (DCA) has been utilizing the BreEze online licensing and enforcement system for quite some time. They are planning to transition more of the state Boards and Bureaus to this system.

In the past, my law firm has always encouraged all those who have a state license to submit their renewals as early as 8 to 12 weeks in advance of the expiration date as there can be delays in the processing by the respective California Board or Bureau.

The DCA has recently acknowledged they will have to shut down the system for a brief period of time due to their planned transition noted above and, therefore is currently recommending everyone take this into consideration in filing an initial application for a professional or occupational license, a renewal of an existing license, as well as changes to one’s address of record and/or a change of one’s legal name.

No one should risk not having proof of licensure when they perform their work as that could result in practicing without a license, which can be charged as  a misdemeanor crime.

 

 

 

Governor Brown Extends The Enforcement Power of Board of Registered Nursing

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On October 1st, the Governor extended the power of the Board of Registered Nursing (BRN) to regulate the practice of Nursing to January 1, 2018 when it will be repealed if a new law is not enacted. The previous sunset law permitted the BRN to impose disciplinary action, and to grant or deny applicants a license, only up until January1, 2016.

Regardless of your politics, it seems futile to ask why our legislature might deem the regulation of nurses &/or professional and occupational licensing to be of no public concern and from time to time enact legislation to repeal any such authority. This comes at a time when there are so many social, financial, community and political needs of our state that instead should take precedence over passing sunset laws related to health care professionals.  If there is a question regarding the abuse of discretion by a state Board, there are other means  by which the legislature can deal with any such problem or issue. Had there been sufficient agreement with the above position, the legislature would have selected another date far in the future, such as 2030 or even later.

The following is a link to Senate Bill 466:  https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB466

 

New California Law For Traffic Fines

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Governor Brown just signed new legislation providing relief for traffic fines in California. The law is operative beginning October 1, 2015 and runs through March 31, 2017.  The goal is to help those who receive a traffic ticket from facing not only large fines, but assessments as well. For example, if you receive a$100 ticket, you may discover the actual cost is closer to $500 after you pay the fees and assessments, etc. This is also the case because if an individual does not appear in court or fails to make payments on his/her ticket, an additional $300 is added.

Although Judges have the discretion to reduce or waive payment of bail, fines, penalties, fees &/or a civil assessment, the previous law required advance payment in order to schedule a court appearance in front of a Judge to request the Court vacate the civil assessment or reduce fines, penalties, etc. Now,  the payment of the assessment is not required before one can schedule a court hearing on his or her pending traffic infraction.

Lastly, the new law establishes a one-time amnesty program allowing for the payment of 50% of unpaid bail, fines or assessments (certain individuals receiving public benefits may only be required to pay 20%). In some cases, one can apply for installment payments for their outstanding traffic tickets. In addition, the DMV cannot deny reinstating the driving privilege of anyone who participates in this amnesty program, as long as there are no outstanding serious misdemeanor infractions such as drunk driving and/or felony warrants and the individual does not owe victim restitution on any case within the county.

Hence, anyone making payments on their traffic fines, no matter when they received their citation, can get their license back immediately. Nearly five (5) million drivers in California had their drivers’ licenses suspended in the past approximate nine years. Moreover, no criminal action can be filed against anyone if he or she is delinquent regarding a fine or bail under this amnesty program (it has been estimated there currently is approximately $10 billion in uncollected fines owed).

Is a University Liable for Violence on the Campus?

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The California Court of Appeals was scheduled  to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and  inhumane have become a national scourge.

Women in the Legal System – As a Judge or Judged as a Lawyer

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In a recent study published on June 10, 2015, in the Social Science Research Network, the authors look at the significance of male and female participants as judges and litigants in the legal system. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616502

The authors noted they evaluated empirical data to determine to what extent a male or a female lawyer obtained a better result in front of a male panel of judges. Their research substantiated that female attorneys generally did better than their male partisans in cases heard before an all-male panel of judges; and, male attorneys tended to fare better before a mixed-gender panel hearing the case. In other words, female litigants tended to obtain a better result in front of an all-male panel of judges, and a mixed-panel of judges seemed to be more favorable to male litigants than an all-male panel.

After reading the study referenced herein, perhaps it will offer additional insight into the important question to what extent gender bias impacts the decision making process in our judicial system. In reality, there is the human side of being a judge and, therefore, judges bring their own predilections to the bench as do the majority of all of us when presented with issues &/or narratives. Many commentators will contend the difference is that the goal of judges, among other things, is to be totally objective and unbiased.

What To Do If You Get A Call or Letter From The Government?

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If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

Are Contractual Jury Trial Waivers Valid?

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On April 16, 2015, in the case of County of Orange vs. Tata Consultancy Services, Ltd. et al, Case #14-72343, the United States Court of Appeals For The Ninth Circuit granted a Petition For Writ of Mandamus from the U.S. District Court (Southern District), and in the facts of this case held unenforceable a jury waiver provision in a contract that was not expressly authorized by statute under California law even though a voluntary and knowing pre-dispute contractual waiver is valid under Federal law.

Since it is not uncommon because of economic factors for lawyers who draft contracts to provide for a waiver of the right to a jury otherwise guaranteed by the Seventh Amendment to the U.S. Constitution and Section 6 of the California Constitution, this opinion will likely have a significant impact when a party waives a right to a jury trial that is not otherwise authorized by Civil Code section 631.

In general, contracts that provide for arbitration in lieu of a jury trial, however, are enforceable as long as a legally proper and complete waiver is set forth therein.

Intoxicated Passenger Unable to Collect from Taxi Service

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A taxi company and its driver were sued for wrongful death (negligence) when a passenger who was intoxicated exited the cab, and then within a half an hour walked into heavy traffic and was killed by a drunk driver.

On March 11, 2015, a Santa Barbara Court jury concluded the decedent’s mother could not collect even though the municipal law required a taxi driver to  allow a passenger to exit only at a curb.

The Plaintiff’s lawyer argued the taxi cab was a common carrier and owed a higher standard (duty) of care to ensure the safety of its customers. The outcome was not based upon a lack of negligence by the defendants, and/or any one of them, however, but their neglect was deemed not the proximate cause of the death of the passenger. In other words, the conduct was not a substantial factor causing the death of the passenger in both time and location.

It is noteworthy that the 78 year old driver of the vehicle that struck and killed the victim was arrested and charged with felony hit and run. His blood alcohol was three times the legal limit, he entered a guilty plea and was sentenced to one year in the County Jail and three years’ probation. His insurance carrier paid the family who settled for policy limits of $30,000.

The case is:  Quintanar v. Absolute Cab LLC., et al. (Santa Barbara Super. Ct., originally filed May 13, 2014).

 

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