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Posts Tagged ‘California’

SCOTUS Grants Injunctive Relief In Free Exercise Case Challenging California’s COVID-19 Restrictions

Posted on: April 14th, 2021

By: Caitlin Tubbesing

Building on its pandemic-era Free Exercise Clause decisions, SCOTUS rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious activities for the fifth time on Friday (4/9/21).  In a 5-4 vote in Tandon, et al. v. Newsom, et al., the majority granted two California pastors’ application for emergency injunctive relief relating to the state’s COVID restrictions on private gatherings, which limit at-home religious gatherings to members of three households or less. The pastors argue that the restrictions preventing them from holding in-home Bible studies and communal worship with more than three households violate the Free Exercise Clause of the First Amendment.

The Ninth Circuit denied the pastors’ motion for emergency injunctive relief – because at-home secular gatherings were treated the same, the restrictions were neutral and generally applicable and triggered only rational basis review. Therefore, the pastors could not establish the they were likely to succeed on the merits. Last week’s 5-4 decision reversing the Ninth Circuit reiterated and applied the following points enunciated in the Court’s recent decisions addressing free exercise challenges to COVID-19 restrictions:  

  • Whenever a government regulation treats any comparable secular activity more favorable than religious exercise, it is not neutral and triggers strict scrutiny under the Free Exercise Clause; it does not matter that a state may treat some comparable secular businesses or other activities as poorly or less favorably than the religious exercise at issue.
  • Whether activities are comparable under the Free Exercise Clause must be evaluated against the asserted government interest justifying the challenged regulation – what matters is the risk of the activities.
  • The burden is on the government to establish that the law meets strict scrutiny. This requires more than asserting that “certain risk factors are always present in worship, or always absent from other secular activities;” and instead, show that less restrictive measures could not address its interest in reducing the spread of COVID-19. Likewise, if other secular activities are allowed to take place with precautions, the state must demonstrate that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.
  • Even if the government withdraws or modifies a COVID restriction after litigation begins, the case is not necessarily moot, and as long as the case is not moot and applicants “remain under a constant threat” that government will use its power to reinstate the restrictions, litigants may be entitled to emergency injunctive relief.

In this case, the Court found that California treated “some comparable secular activities” – such as hair salons, movie theaters, and indoor restaurants, more favorably than at-home religious exercise. Second, it observed that the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than the in-home bible study and communal worship at issue, and erroneously did not require the state to explain why it could not allow for larger gatherings of at-home religious exercise while using precautions required for secular activities. Finally, even though the private gathering restrictions had been changed after the application was filed, the restrictions remained in place until April 15th and were subject to being reinstated.

In sum, the majority determined the Applicants were likely to succeed on the merits because (i) they were irreparably harmed by the loss of free exercise rights (even for a minimal period of time); and (ii) California did not show that “public health would be imperiled” by employing less restrictive measures. Therefore, emergency injunctive relief was warranted.

For more information about this topic, please contact Caitlin Tubbesing at [email protected].

Are Non-Refundable Lawyer Retainers Legal in California?

Posted on: January 26th, 2021

By: Greg Fayard

Joe wants to hire Bill, a California lawyer, to defend a breach of contract case. Bill agrees to defend Joe but will only take a $10,000 non-refundable retainer. Is this legal? No. 

Under Rule 1.5(d) of the Rules of Professional Conduct that govern California lawyers, non-refundable retainers are now permitted in a very limited circumstance—the rare “true retainer” situation. The “true retainer” is from an earlier time when there were fewer lawyers and a client needed to secure a lawyer’s services for a specified time in a specific matter.

True retainers are most often used by some lawyers who contract as general counsel for their clients. For example, in exchange for being on call 24/7 to handle accident emergencies for a trucking company, a true retainer arrangement is permissible where the trucking company would pay the lawyer, say $5,000, at the first of the month to secure the lawyer’s availability for the upcoming month. This “true retainer” ensures the lawyer’s immediate availability for that month.

In this situation, non-refundable legal fees are permitted so long as disclosed and agreed to in writing by the client. Otherwise, in our example, Bill cannot accept a non-refundable retainer to defend Joe’s breach of contract case. 

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

New COVID-19 Notice Requirements for California Employers

Posted on: January 12th, 2021

By: Chelsea Whelan

The new year ushers in new rules for California employers receiving notice of potential COVID-19 exposure in the workplace. California Labor Code section 6409.6 became effective January 1 this year following the passage of Assembly Bill 685 and will sunset on January 1, 2023. Section 6409.6 requires employers provide written notice within one business day to employees potentially exposed to COVID-19 in the workplace. 

What Constitutes “Notice of Potential Exposure”?

Section 6509.6 defines notice of potential exposure as exposure to a “qualifying individual”. A “qualifying individual” is defined as an individual who has been diagnosed, tested positive for or died from COVID-19, or anyone subject to a COVID-19-related order to isolate by a public health official. (Cal. Lab. Code section 6509.6(d)(4).) Accordingly, section 6509.6(d)(3) defines notice of potential exposure to COVID-19 as notice either that an employee is a qualifying individual or that an employee was exposed to a qualifying individual at the workplace. 

Written Notice Requirements

In order to comply with section 6509.6, employers notified of potential exposure to COVID-19 in the workplace must provide written notice to all employees, as well as the employers of subcontracted employees, who were on the premises at the same worksite as a qualifying individual within the infectious period. The notice can be sent via email, text or personal service if it can reasonably be anticipated to be received by the employee within one business day of sending. Also, the notice must be in English or the language understood by the majority of employees. The following must be included in a written notice:

  • Information regarding COVID-19-related benefits an employee might be entitled to under federal, state or local law, including, but not limited to workers’ compensation and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions.
  • Notice of antidiscrimination and antiretaliation protections for employees disclosing a positive COVID-19 test or diagnosis.
  • Notice of the disinfection and safety the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

As described in the notice requirements above, section 6409.6 contains antiretaliation and antidiscrimination protections for workers disclosing a positive COVID-19 test, diagnosis or order to quarantine or isolate and allows for the Department of Labor Standards Enforcement to issue citations and penalties for violation of the statute.

Section 6409.6 also requires employers to report a COVID-19 outbreak to the State Department of Public Health within 48 hours. What constitutes an outbreak is defined by the State Department of Public Health.

If you have questions or would like more information, please contact Chelsea Whelan at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Are Adult Entertainment Clubs Going To Save California’s Restaurants?

Posted on: December 22nd, 2020

By: John Moot

In what could be the beginning of a reopening for restaurants hard hit by California’s new stay at home orders, two San Diego adult entertainment clubs have come to the rescue. A San Diego Superior Court Judge on December 16th granted a preliminary injunction enjoining any governmental entity or law enforcement officer from enforcing cease and desist orders including the State’s Regional Stay at Home Order against two well-known adult entertainment venues in San Diego who also serve food. Using the United States Supreme Court’s recent decision allowing churches in New York to open for indoor services as a jumping off point, the Court applied the First Amendment rights of adult entertainment establishments to find the State’s rational to close their business that included selling food to be woefully deficient. In a careful analysis of the facts including the County’s own witnesses, the Court found there was no evidence the adult entertainment clubs or their restaurant exposed patrons, its staff or employees to COVID-19. The Court found no evidence that “businesses with restaurant services such as Plaintiffs’ establishment who have implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less San Diego County).

In what could be read as rebuke to the Governor’s overly broad orders lacking in factual support, the Court after noting “essential businesses” that were allowed to stay open, quoted Supreme Court Justice Gorsuch’s concurring opinion in the Roman Catholic Diocese of Brooklyn stating, “who knew public health would so perfectly align with secular convenience.” In an ironic twist, a conservative Supreme Court majority has put adult entertainment clubs on par with churches as one of the few places Californians may be able to seek respite from the pandemic.

Restaurant owners’ glee however may have hit a roadblock. After the trial court clarified its ruling to apply to all restaurants not just ones in the adult entertainment clubs, the Appellate Court stepped in and stayed the ruling and will not consider the matter. Under the First Amendment, governmental action that infringes on First Amendment rights are subject to higher judicial security. Will the Appellate Court limit the lower court ruling to “Plaintiffs providing live adult entertainment” and businesses with “with restaurant service such as Plaintiffs?” Stay tuned. Either way a California Court has let the cat out of the bag and has questioned COVID orders where the punishment does not necessarily fit the crime.

If you have questions or would like more information, please contact John Moot at [email protected].

California Assembly Bill 1552 – Near Miss or Cautionary Tale for Insurers?

Posted on: November 11th, 2020

By: Ryan Greenspan

As fear of the novel coronavirus and COVID-19 continues to grip the world, an array of government rules, restrictions, and guidelines have been imposed. Some businesses have been operating at a limited capacity and some have closed outright. In March of this year, California’s governor issued one of the strictest orders in the country, defining what is an “essential” and a “non-essential” business and then ordering all so-called “non-essential” businesses to shut down indefinitely. The governor has since permitted certain businesses to re-open to varying degrees.

Many businesses are now seeking to recoup their losses by making claims under insurance policies that provide for business interruption coverage.

Courts around the country have already weighed in on the applicability of business interruption insurance, but this past summer, California Assembly members James C. Ramos and Monique Limon introduced Assembly Bill 1552 (“AB 1552”). Typically, business interruption insurance is available when the insured can prove direct, physical loss or damage to covered property. AB 1552 was different from other, similar bills introduced in such states as Massachusetts and New York because it would have created a rebuttable presumption that the novel coronavirus was present at a business’s property and resulted indirect, physical damage to or loss of property. Bills introduced in other states would have simply mandated coverage, which would make those bills subject to constitutional challenges from insurers. AB 1552’s rebuttable presumption was an attempt to withstand a constitutional challenge.

On June 26, 2020, AB 1552 passed in the California State Assembly by a 77-0 margin. However, it was unable to garner further support and was pulled from consideration before receiving a vote in the State Senate. With the California Legislature currently in recess until January 2021, there is no chance that such a bill, in any form, will be passed in 2020. 

While insurers operating in California may have dodged a proverbial landmine, the governor’s forced closures continue, and many believe that when the California state legislature reconvenes in 2021, a form of AB 1552 revised to attract Senate support may be introduced. Its significant support in the State Assembly is likely to keep the possibility alive for 2021.

If you have any questions about AB 1552 or business interruption insurance practices in California, please contact Ryan Greenspan at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**