Jacobson & Associates

Dear Clients and Friends of Jacobson & Associates, A recent California Court of Appeal opinion emphasizes an important legal principal for those who contract with California governmental entities. The 07/17/17 case says, A contract entered into by a local government without legal authority is wholly void, ultra vires, and unenforceable. (Ponte v. County of Calaveras)* The facts in Pointe started with a ‘land failure’ at the intersection of a private drivew...ay and a public road. The owner of the driveway called out a geotechnical engineer. That engineer assessed the problem to be under the road, an area of County responsibility. In the lawsuit that resulted, the engineer alleged that he and a County employee had agreed that the engineer would fix the problem, after which the engineer billed the County for his services. While there are practical problems of proof with oral contracts, with the exception of contracts that are covered by a statute of frauds, oral contracts are as valid as are written contracts.** But, there are often statute of fraud issues when dealing with government agencies. That was true in Pointe. The engineer argued a concept called promissory estoppel. Promissory estoppel comes up when a party relies on the promise of another party. The doctrine can obviate the need for mutual consideration.*** In Pointe the engineer took the doctrine further, arguing that it allowed him to rely on the County’s alleged promise, so that he would be appropriately paid. But, as is usually the case with governments, the County had various ordinances with which a vendor had to comply in order for the contract to be valid and enforceable. The Court recognized that there in some rare cases there might be an emergency exception to the County contracting rules. This wasn’t one of those cases that fits into the narrow window [where] application of estoppel against public entities might apply. In fact, one of the County rules was that a vendor/County contract had to be in writing. Allowing promissory estoppel in [Pointe] would undermine ordinances setting rules for public contracts, which in part is to preclude oral contract claims. Therefore, this is not an exceptional case as contemplated by the law.**** Here’s the bottom line. When contracting with a governmental entity, go by the book. If one doesn’t do that, even if a government employee represents that it’s okay to not follow the rules, one might be out a great deal of time, money, and work, with no recourse. Dan Jacobson *2017 Cal. App. LEXIS 710, filed by the Third District Court of Appeal on 07/17/17. [Internal quotation marks and citations omitted.] **Civil Code 1622. ***Healy v. Brewster (1963) 59 Cal. 2d 455, 463. ****Pointe, supra. [Internal quotation marks and citation omitted.] Jacobson & Associates Newsletter Dan Jacobson, Principal

Dear Friends of Jacobson & Associates, New California Supreme Court prevailing wage case: On 02/16/17 the California Supreme Court filed an opinion in a prevailing wage case, Slurry Seal, Inc., et al. v. American Asphalt South Inc.* Some may see the Slurry opinion as a crippling blow to the enforcement of California’s prevailing wage laws those lawyers would be wrong. I’ve spent decades continually studying and analyzing California’s daily publishe...Continue reading

Dear Friends of Jacobson & Associates, The District Court of Appeal in San Diego (that District also covers Orange, San Bernardino, Riverside, and Imperial Court) recently published a case that found an intersection between California’s basic anti-employment-discrimination law (the Fair Employment and Housing Act or FEHA), and the California Family Rights Act (CFRA). The same facts can give rise to liability under both laws.* Deborah Moore worked for the U...niversity of California at San Diego. She had a heart condition, which required surgery.** Soon after Ms. Moore asked for time off for her surgery, her position was eliminated and she was terminated. She sued the University for causes of action under both the FEHA and the CFRA. The Court found that bringing actions under both laws was appropriate and that Ms. Moore’s case should proceed to trial. The FEHA makes discrimination illegal under a whole host of categories, including physical . . . disability or medical condition. The CFRA requires an employer of 50 [who are employed within 75 miles of the subject employee] to grant a request by a qualified employee to take up to 12 weeks [unpaid***] in an 12-month period for family or medical leave**** Both the FEHA and the CFRA have numerous ins and outs that are not covered in the above brief overview of Moore. Do not attempt to deal with either law without competent legal advice. Feel free to call me anytime to discuss either law. As you know, I’m at 714-505-4872. Thank you. Dan Jacobson * Moore v. Regents of the University of California 2016 DJDAR 5990. **Moore was a Summary Adjudication case; The facts in the case and shown here have not been proven; but, have been reasonably alleged by the parties. *** Lonicki v. Sutter Health Central 43 Cal.4th 201, 208. **** Moore, supra at 5993.

Dear Clients and Friends of Jacobson & Associates, A recent California Court of Appeal opinion emphasizes an important legal principal for those who contract with California governmental entities. The 07/17/17 case says, A contract entered into by a local government without legal authority is wholly void, ultra vires, and unenforceable. (Ponte v. County of Calaveras)* The facts in Pointe started with a ‘land failure’ at the intersection of a private drivew...ay and a public road. The owner of the driveway called out a geotechnical engineer. That engineer assessed the problem to be under the road, an area of County responsibility. In the lawsuit that resulted, the engineer alleged that he and a County employee had agreed that the engineer would fix the problem, after which the engineer billed the County for his services. While there are practical problems of proof with oral contracts, with the exception of contracts that are covered by a statute of frauds, oral contracts are as valid as are written contracts.** But, there are often statute of fraud issues when dealing with government agencies. That was true in Pointe. The engineer argued a concept called promissory estoppel. Promissory estoppel comes up when a party relies on the promise of another party. The doctrine can obviate the need for mutual consideration.*** In Pointe the engineer took the doctrine further, arguing that it allowed him to rely on the County’s alleged promise, so that he would be appropriately paid. But, as is usually the case with governments, the County had various ordinances with which a vendor had to comply in order for the contract to be valid and enforceable. The Court recognized that there in some rare cases there might be an emergency exception to the County contracting rules. This wasn’t one of those cases that fits into the narrow window [where] application of estoppel against public entities might apply. In fact, one of the County rules was that a vendor/County contract had to be in writing. Allowing promissory estoppel in [Pointe] would undermine ordinances setting rules for public contracts, which in part is to preclude oral contract claims. Therefore, this is not an exceptional case as contemplated by the law.**** Here’s the bottom line. When contracting with a governmental entity, go by the book. If one doesn’t do that, even if a government employee represents that it’s okay to not follow the rules, one might be out a great deal of time, money, and work, with no recourse. Dan Jacobson *2017 Cal. App. LEXIS 710, filed by the Third District Court of Appeal on 07/17/17. [Internal quotation marks and citations omitted.] **Civil Code 1622. ***Healy v. Brewster (1963) 59 Cal. 2d 455, 463. ****Pointe, supra. [Internal quotation marks and citation omitted.] Jacobson & Associates Newsletter Dan Jacobson, Principal

Dear Friends of Jacobson & Associates, New California Supreme Court prevailing wage case: On 02/16/17 the California Supreme Court filed an opinion in a prevailing wage case, Slurry Seal, Inc., et al. v. American Asphalt South Inc.* Some may see the Slurry opinion as a crippling blow to the enforcement of California’s prevailing wage laws those lawyers would be wrong. I’ve spent decades continually studying and analyzing California’s daily publishe...Continue reading

Dear Friends of Jacobson & Associates, The District Court of Appeal in San Diego (that District also covers Orange, San Bernardino, Riverside, and Imperial Court) recently published a case that found an intersection between California’s basic anti-employment-discrimination law (the Fair Employment and Housing Act or FEHA), and the California Family Rights Act (CFRA). The same facts can give rise to liability under both laws.* Deborah Moore worked for the U...niversity of California at San Diego. She had a heart condition, which required surgery.** Soon after Ms. Moore asked for time off for her surgery, her position was eliminated and she was terminated. She sued the University for causes of action under both the FEHA and the CFRA. The Court found that bringing actions under both laws was appropriate and that Ms. Moore’s case should proceed to trial. The FEHA makes discrimination illegal under a whole host of categories, including physical . . . disability or medical condition. The CFRA requires an employer of 50 [who are employed within 75 miles of the subject employee] to grant a request by a qualified employee to take up to 12 weeks [unpaid***] in an 12-month period for family or medical leave**** Both the FEHA and the CFRA have numerous ins and outs that are not covered in the above brief overview of Moore. Do not attempt to deal with either law without competent legal advice. Feel free to call me anytime to discuss either law. As you know, I’m at 714-505-4872. Thank you. Dan Jacobson * Moore v. Regents of the University of California 2016 DJDAR 5990. **Moore was a Summary Adjudication case; The facts in the case and shown here have not been proven; but, have been reasonably alleged by the parties. *** Lonicki v. Sutter Health Central 43 Cal.4th 201, 208. **** Moore, supra at 5993.

California Supreme Court Allows Potentially Increased in Punitive Damages Against Errant Insurance Companies In an opinion issued on 06/11/16* the California Supreme Court decided that Brandt fees must be considered as part of compensatory damages when the Court makes a determination as to whether excessive punitive damages were awarded. Brandt fees are the attorney fees that an insured incurred in bringing a victorious bad faith action against an insurer.** I...n recent years the U.S. Supreme Court has limited the amount of punitive damages (damages designed to punish a wrongdoer) that a plaintiff can be awarded.*** The U.S. Supreme Court, requires states to . . . provide for judicial review of the size of a punitive damages award. One of the factors that that judicial review must consider is, the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award.***** In other words, the larger the compensatory damages, the larger the punitive damages can be. In Nickerson the California Supreme Court reasoned that although Brandt fees are indeed attorney fees, but the Brandt case itself casts those fees as damages, because they were necessarily incurred in order for the insured to enforce his/her/its rights against the insurance company. So, Brandt fees must be considered as part of the total damages when the court reviews the amount of punitive damages. That necessarily necessarily could allow the punitive damages to be larger and even much larger, in bad case cases against insurers. Dan Jacobson Attorney, and Property/Casualty Insurance Claims Expert * Nickerson v. Stonebridge Life Insurance 2016 DJDAR 5547. **Brandt v. Superior Court (1985) 37 Cal.3d 813. ***See State Farm v. Campbell (3003) 538U.S. 408. ****Nickerson. *****State Farm at p. 418. For more information on any of this new law, contact Jacobson & Associates, at [email protected], or 714-505-4872

Dear Jacobson & Associates Client, Well it’s finally happened, the California Court of Appeal has approved a jury decision that an attorney fee of $1,000.00/hour is reasonable. Those of us who have been concerned about the high cost of litigation have been fearing this day; it’s here. In Chodo v. Borman* the Court even pointed out that the attorney who is worth $1,000.00/hour failed to follow two statutes that required written fee agreements. Rid...iculous. Please be assured that at Jacobson & Associates, your fee will be reasonable, you will get the best legal representation available in California. *2014 DJDAR 7812, Filed on 06/18/14 by Div. Five of the Second Dist. Court of Appeal.

For more information on any of this new law, contact Jacobson & Associates, at [email protected], or 714-505-4872 On 06/09/14 the California Court of Appeal ruled that it is within a trial court’s sound discretion to not apportion between two defendants, otherwise appropriately awarded attorney fees. The Court of Appeal said that When two defendants assert[] . . . joint defenses, and their counsel would have been required to do the same legal research and analy...sis in preparing those defenses regardless of whether they applied to both defendants or to [one defendant] only[:] ‘[T]he fact [that one defendant] incidentally benefited from the legal work performed on behalf of [the other defendant] does not diminish [that defendant’s] contractual right to recover attorney fees litigating issues common to’ both defendants. (Hill v. Degery 2014 DJDAR 7330, Filed on 06/09/14 by the Sixth Appellate District.) See more

New Law For more information on any of this new law, contact Jacobson & Associates, at [email protected], or 714-505-4872 In a case that we believe may be headed to the California Supreme Court, if it doesn’t first settle, the Sixth District Court of Appeals decided that an employer’s statement that it would give its employees, a bonus, enough to retire was definitely enough consideration to create a valid contract. In Moncada v. West Coast Quartz a panel of three justices voted 2-1 to overturn a trial court decision. Jacobson & Associates agrees with the dissenting justice, and sees the Supreme Court overturning Moncada, if the case doesn’t settle. Consideration in a contract must be definite, must be definable, in order for that contract to be valid.