Category Archives: Legal

An Overview of Ban the Box Laws in California

Individuals with criminal records unquestionably have a more difficult time obtaining gainful employment than individuals without criminal records. In fact, in a 2007 study, only approximately 40 percent of employers in four major metropolitan areas reported that they would “definitely” or “probably” hire applicants with a criminal history.1 In the same study, which also looked at the rates of “call backs” or job offers for applicants with different demographics, job offers for whites with criminal records fall by about half, and are reduced by that much or more for black ex-convicts.2

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What’s in a name? A battle for a transgender immigrant’s rights

While the United States continues to grapple with transgender rights—including the right to restroom access—transgender individuals across the globe often face severe persecution and torture on account of their gender identity. One difficulty transgender people encounter both domestically and abroad concerns the ability to ensure that their official documents bear the chosen names that match their gender. When trans immigrants seek to have their cases heard in U.S. immigration courts, it is important—but not always easy—to ensure that orders affecting their rights include both the name they were given at birth and the name that corresponds with their gender.

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The Revised Federal Rules of Civil Procedure: Proportionality is King

As most federal practitioners are aware, certain amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. The underlying objective of this year’s amendments is to resolve cases more quickly, more fairly, and with less expense incurred. Specifically, Rules 26 and 37 were amended to rein in out-of-control expenses associated with the collection, processing, review, and production of electronically stored information (ESI). Historically, parties have engaged in the practice of over-collecting and over-producing electronic records comprising millions of pages—a very time consuming and expensive process when one takes into account the corresponding laborious review. Yet, in most instances, only a fraction of ESI produced in discovery is ultimately admitted into evidence. In addition, whether sound or not, many attorneys (in-house and outside counsel) turn over the responsibility of collecting potentially responsive files to someone in the organization who is not an attorney (e.g., custodian of records, etc.). This “self-collection” naturally results in “self-culling.” The Rules Committee has taken note of this tedious and taxing process and, as a result, has embraced efforts to address to bring consistency and efficiency to all new cases, and to a certain extent, cases pending as of December 1, 2015.

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AB1141 Amends California Code of Civil Procedure

AB 1141, which was passed on September 28, 2015 and made effective January 1, 2016, revives an expired procedure for filing a motion for summary adjudication to facilitate resolution of a case. A change in the law in 2011 previously amended Section 473c of the Code of Civil Procedure. Under that change, courts were allowed, from January 1, 2012 until December 31, 2014, to summarily adjudicate portions of major causes of action or affirmative defenses, without resolving the entire cause of action or affirmative defense in the case. This change in the law required that both parties stipulate that the resolution of the issue by the court would either: (1) reduce the time of trial; or (2) significantly increase the ability of the parties to resolve the case by settlement. According to an article in the California Bar Journal, To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c, the amended statute provided necessary and long-awaited benefits to both defense and plaintiff attorneys. ( http://www.calbarjournal. com/march2012 ). However, the amended statute, which was codified under subsection (s) of Section 437c, expired on January 1, 2015. AB 1141 reenacts this summary adjudication provision, allowing courts to grant motions to resolve certain issues within a cause of action, thereby improving judicial economy, reducing the duration of trials, and encouraging pretrial settlements.

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California Supreme Court Raises the Bar for Recovery of Costs by Prevailing Defendants in FEHA Cases

In Williams v. Chino Valley Independent Fire District, the California Supreme Court held that a prevailing defendant in a California Fair Employment and Housing Act (“FEHA”) case can only recover costs of suit where the plaintiff’s action was objectively groundless.

Loring Williams (“Williams”) worked as a firefighter for Chino Valley Independent Fire District (“Chino Valley”). Williams sued Chino Valley, alleging disability discrimination in violation of the FEHA. The trial court granted summary judgment in Chino Valley’s favor and awarded it costs totaling $5,368.88. The court of appeal affirmed, holding that the prevailing party was entitled to court costs as a matter of right pursuant to Code of Civil Procedure section 1032(b) (“Section 1032(b)”). A defendant/employer, however, may only be awarded attorneys’ fees if the plaintiff’s suit was baseless and unfounded.

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Employer Alert re California Fair Pay Act

If they have not already done so, California employers must take steps to see that their pay practices conform to the new standards established under the California Fair Pay Act (“CFPA”), which becomes effective on January 1, 2016. The CFPA amends section 1197.5 of the California Labor Code, which prohibits employers from paying employees at wage rates “less than employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Since the enactment of Section 1197.5 in 1949, employees who could establish the existence of a gender-based pay differential “for the same work in the same establishment” could sue to recover for the amount of the pay differential; however, according to the legislative findings giving rise to the enactment of the CFPA, Section 1197.5 has been “rarely utilized because the current statutory language makes it difficult to establish a successful claim.”1 The legislature also found that “pay secrecy” contributes to gender-based wage disparities “because women cannot challenge wage discrimination that they do not know exists.”2 Hence, in passing the CFPA, the state legislature declared its intent to make it easier for employees to sue and recover under the statute.

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Written Objections to Summary Judgment Evidence are Preserved for Appeal

On August 10, 2015, Governor Brown signed SB 470, codifying the holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, that evidentiary objections on motions for summary judgment are preserved on appeal whether or not the trial court rules on them. The bill adds the following language to California Code of Civil Procedure section 437c:

(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

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