The Undocumented and the Bar Association: A Comparison between States

On January 2nd of this year, California became the first state in the country to give an undocumented alien a professional license to practice law when the state Supreme Court determined that Sergio Garcia could be admitted to the Bar.  In re Garcia, 315 P.3d 117, 127 (Ca. 2014).  In Florida, the same question was put before its state Supreme Court which ruled on March 6, 2014 that it could not admit undocumented aliens to the Florida Bar Association.  FLORIDA BOARD OF BAR EXAMINERS RE: QUESTION AS TO WHETHER UNDOCUMENTED IMMIGRANTS ARE ELIGIBLE FOR ADMISSION TO THE FLORIDA BAR. (SC11-2568) (Fla. 2014).

The reason for the difference in policy comes down to a federal law passed in 1996 called the Personal Responsibility and Work Opportunity Reconciliation Act (“Act”).  The Act changed hundreds of statutes, including adding Section 1621 to Title 8 of the United States Code.  Section 1621(a) denied states the right to give any “public benefit” to a person who is not authorized to be in the United States.  Section 1621(b) stated that a professional license issued by a state is a public benefit for the purposes of the Act.  Yet, Section 1621(d) did provide an exemption if a state legislature would pass a law after 1996 specifically referencing that undocumented aliens can claim the benefit.

In California, Mr. Garcia and the California Board of Bar Examiners asked the state Supreme Court, which governs who may be given a license to practice law, to admit Mr. Garcia to the Bar Association.  At the time of Mr. Garcia’s petition, the state legislature had not acted to allow undocumented immigrants to have any professional licenses.  Two days after oral arguments on this matter before the California Supreme Court, a legislator proposed a bill to allow undocumented immigrants to receive a law license.  The bill was overwhelmingly passed and signed by the Governor later that month.  In light of the new statute, the California Supreme Court ordered a rehearing on January 2, 2014 (which is a day after the new law would become effective).  On January 2nd, the Court issued its opinion that California’s new statute would satisfy the exemption in 1621(d).  Therefore, Mr. Garcia and all those similarly situated will be granted a license to practice law in the state of California.

In Florida, the Florida Board of Bar Examiners asked for an advisory opinion on whether an undocumented immigrant who otherwise is qualified to receive a law license may be admitted to the Florida Bar Association.  The Florida Supreme Court issued its advisory opinion on March 6, 2014.  The Florida legislature has not passed any legislation addressing this issue.  Therefore, the Florida Supreme Court’s advisory opinion states that an undocumented immigrant, who is otherwise fully qualified to be admitted to the Bar Association, cannot receive a law license.  Since there is no relevant legislation that allows for an exemption Section 1621(a), the Florida Supreme Court had no choice but to clarify that Florida law does not allow for undocumented immigrants to be licensed to practice law in Florida.

As the federal government and states try to negotiate the problems concerning the large number of undocumented immigrants in this country that have lived here in some instances for decades, more interesting legal issues will begin to come to the forefront.

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No Talk, No Text, No Ticket

In People v. Spriggs ___ Cal. App. 4th ___ (2014) (Fifth Appellate District, filed 2/27/14), a driver who was using a map application on his cell phone while stopped at a red light was given a ticket for violating California Vehicle Code Section 23123, subdivision (a).  Mr. Steven Spriggs objected to this citation and tried to defend himself in Superior Court by claiming that the statute did not apply to his use of his cell phone to use a map application.  The trial court disagreed and convicted him for violating Section 23123(a).  Mr. Spriggs appealed to the Appellate Division of the Superior Court but it upheld his conviction.  Mr. Spriggs next appealed to the California Court of Appeal.  The Fifth Appellate District of the California Court of Appeal agreed with Mr. Spriggs’ interpretation of the statute and reversed his conviction in its opinion on February 27, 2014.

This case deals fundamentally with interpreting whether the language in Section 23123(a) prohibits all use of a hand-held device while driving or merely calling and receiving calls without using a hands-free service.  Specifically, the statute prohibits the use of a wireless phone while driving “unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.”  Mr. Spriggs asserted that by speaking of “listening and talking”, the legislature narrowed the applicability of the statute to only the making and receiving of calls on a hand-held device without a hands-free attachment.  The prosecution interpreted the statute to indicate that the legislature prohibited all uses of a hand-held device while driving except for “hands-free listening and talking.”  The trial court agreed with the prosecution’s interpretation of the statute and convicted Mr. Spriggs.  The Appellate Court did not agree and reversed.

The Appellate Court stated that the prosecution’s interpretation had some merit.  Yet the Court held that the most reasonable understanding of the statute is Mr. Spriggs’ which is that Section 23123(a) only prohibits the use of the telephone to engage in conversation while holding the phone.  The Court reasoned that if the legislature had wanted to proscribe the use of the “telephone” for anything other than hands-free use, then it would have used more comprehensive language than “hands-free listening and talking.”  Moreover, the Court looked at the legislative history of the statute and found that the legislators’ primary concern was to prevent people from having conversations on a cell phone without using some type of hands-free technology.  Finally, the Court did a comparison to more recently passed statutes that were related to the same issue and found that they further reinforced the Court’s thinking.

Therefore, in California, people are not prohibited from using applications on their phone while driving, except for making or receiving calls while holding their cell phone. Please continue to come to our blog for more information about current legal news.  

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When is a child a resident of a state in a child custody dispute?

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which was developed in 1997 and was adopted by California in 1999, governs when a child is a resident of a state. The UCCJEA governs whether a state’s court system may decide on any outstanding child custody issues.  The law was drafted to replace the Uniform Child Custody Jurisdiction Act specifically to address omissions regarding initial child custody determinations.  (Wikipedia) On March 14, 2014, the Fourth Appellate District  further clarified the above legal issue.  In Re Gino C. ___ Cal. App. 4th ___ (2014) (Fourth Appellate District, filed 3/14/14).  Please contact our network of family law attorneys for more in-depth information on child custody issues and a FREE CONSULTATION on other family law issues.

The children in In Re Gino C. are U.S. Citizens, residents of Mexico for the past four years and living with their mother who is also a U.S. Citizen.  They were traveling from Mexico to Nevada by bus when the mother was arrested at a border checkpoint for being under the influence of a controlled substance.  The children were taken into protection by the San Diego County Health and Human Services Agency (“Agency”) after their mother’s arrest.  After being released from jail, the mother stated that she could not take care of her children and that she was going to the maternal grandparent of the children in Nevada.  Therefore, the Agency filed a petition claiming that the children were subject to substantial risk from the mother due to drug abuse and possible mental illness.  The Superior Court held three jurisdictional hearings in which it discussed whether California Superior Court was the correct jurisdiction according to the UCCJEA.  The trial court held that it was able to enter a temporary emergency order.  In the final jurisdictional hearing, the trial court held that the temporary jurisdiction could be become permanent if Mexico does not have any child custody proceedings regarding these children.

The UCCJEA states that jurisdiction in child custody matters belongs to the home state of the child, which 

is defined as the state in which the child resided for the past 6 months.  A court may issue a temporary emergency order, but may not proceed any further unless the home state is notified of the proceedings in the state in question and refuses to initiate its own proceedings in its court.  In this case, the trial court acknowledged that Mexico was the home state of the children in question, but still made its own order permanent based on the fact that there have not been any proceedings initiated in Mexico.  The father and mother of the children objected to the order and appealed the court’s decision.  The Appellate Court held that the trial court did not abide by the UCCJEA.  The Court held that when the court wishes to take permanent jurisdiction it must contact the home state (Mexico) or provide a time-limited order that allows the parents to initiate proceedings in the home state.  Failing to do this, the trial court abused its discretion and thus the Appellate Court reversed its ruling and remanded the case to the trial court.

A court cannot therefore extend jurisdiction just because the child is located within the state and/or the state has power over the child.  The important fact is where the child resided prior to the initiation of the child custody proceedings.

Please continue to come to our blog for more information about child custody, family law and other issues in the practice areas of our network of lawyers.

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Who’s Liable When Your Co-worker Tries to Kill You?

If one of your co-workers tries to kill you, can you sue your boss?  How about if the co-worker was employed by a temp agency, can you sue the temp agency?  These were the questions put before the Fourth Appellate District when it heard the case of Montague v. AMN Healthcare, Inc. ___ Cal. App. 4th ___ (2014) (Fourth Appellate District, filed 2/21/14).  The Court delivered its opinion on February 21, 2014 affirming the trial court’s decision granting summary judgment to AMN Healthcare.  

It is a long-standing rule in Torts law that a person’s employer is generally liable for acts committed by that person while at work as long as the act was within the scope of employment.  This theory of liability is known as respondeat superior.  A person will be considered to be at work if s/he is engaged in an activity during the hours of his/her employment on behalf of his/her employer’s business.  A person is considered to be within the scope of employment if his/her actions are “(1) required by or incidental to the employee’s duties, or (2) [they] are reasonably foreseeable in light of the employer’s business.” Montague v. AMN Healthcare, Inc. 

In this case, AMN Healthcare, Inc. doing business as Nursefinders provides prescreened nurses to staff hospitals and medical offices.  Nursefinders hired Theresa Drummond and referred her to Kaiser.  Theresa Drummond, at some point, developed an enmity with her fellow employee at Kaiser Sarah Montague. Drummond and Montague had at least a couple of arguments, including one incident where they disagreed as to how to stock rooms.  Several weeks after the stocking argument, Montague drank from a water bottle that she had left at work the previous day.  After drinking, Montague fell violently ill.  Drummond later would confess that she poisoned the water bottle by pouring in carbolic acid.  Sarah Montague would later file suit against Nursefinders for respondeat superior and negligence in their hiring and training of Theresa Drummond.

The Appellate Court held that Theresa Drummond was not an employee of Nursefinders for the purposes of respondeat superior liability.  Moreover, the Court held that even if she was considered an employee of Nursefinders, the poisoning of Sarah Montague was outside the scope of her employment.  When a person is hired by one entity as a “general” employee and then works for another as a “special” employee, the “general” employer is has no liability under the respondeat superior theory if the “general” employer has relinquished total control to the “special” employer.  Here, Drummond was hired and trained by Nursefinders and then relinquished total control of Drummond to Kaiser during the course of her employment there.  Thus, the Court held that Nursefinders were not liable under the respondeat superior theory.

The Fourth Appellate District also held that even if the respondeat superior theory applied to Nursefinders in this case, Drummond’s actions were outside the scope of employment.  There is a two prong test that was described above that demonstrates whether a person’s acts fall within the scope of employment.  No evidence was presented that showed that Montague’s poisoning was required by or incidental to Drummond’s employment.  

Generally, intentional acts are not considered to be within the scope of one’s employment, but if the act was the result of a workplace dispute then respondeat superior theory applies.  A court will consider something a workplace dispute if the two parties disagree over some issue regarding their mutual work.  Here, Drummond and Montague did have a dispute over a work issue, but that was weeks before the incident in question and there was no evidence presented that this was a workplace dispute and not a personal enmity.  Even if this was a workplace dispute, that would make Kaiser the liable party due to Drummond’s and Montague’s mutual employment there, not Nursefinders.

Finally, the Court held that Nursefinders was not negligent in training Drummond, because no training was needed to tell Drummond that she should not poison her fellow employees.  An employer is required to properly train its employees and are liable for acts or omissions made by the employee if such an act or omission would have been corrected with training that is standard in the industry.  Here, Montague tried to demonstrate that Nursefinders failed to provide training in violence at the workplace.  Nursefinders provided evidence of two training courses that they gave to Drummond, but Montague countered that with deposition testimony from Drummond saying that she received no training from Nursefinders.  The Court found the deposition testimony unconvincing because it was vague.  Nonetheless, the Court reasoned that even if Nursefinders did not train Drummond on violence in the workplace, there are some acts that do not require one to be told that they are against the rules and policies of one’s employer.  The Court applied that common-sense precedent to this case and held that Drummond did not need to be trained to know that she should not have poisoned a co-worker.

Therefore, the Fourth Appellate District upheld longstanding precedent in holding that the poisoning of Montague was not the fault of Nursefinders, because they had relinquished control over Drummond.  Even if they had not, the poisoning was an intentional act that was outside the scope of Drummond’s employment.  Finally, the Court reasoned that Nursefinders did train Drummond on workplace violence, but even if they did not, Drummond should have known that you should not poison your co-workers.

So is one’s employer liable when someone tries to poison his/her co-worker?  No . . . Unless it does arise from a workplace dispute or the person is acting within the scope of his/her employment.  Please continue to come back to our blog for more information on the latest legal developments.

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Is it a Truck or a Restaurant? – American States Insurance Company v. Travelers Property Casualty Insurance Company of America

For everyone who owns or operates a food truck or wants to, an important decision came down recently from the Second Appellate District of California.  In American States Insurance Company v. Travelers Property Casualty Insurance Company of America, ____ Cal. App. 4th ___ (2014) (Second Appellate District, filed 1/27/14), Justice Richard Mosk held that Travelers’ Commercial General Liability (“CGL”) policy covered the injury at issue in this case.  Moreover, he said that American States should be indemnified for any award that they paid on behalf of their insured party.

Travelers had an exclusion from its “CGL” policy if the vehicle was an “auto,” except for when the “auto” could be defined as “mobile equipment.”  One of the definitions for “mobile equipment” in Travelers “CGL” policy is “for vehicles used for other than for transport of persons or cargo.”  American States had an exclusion for equipment in an “auto” if the user had “completed work.”  In the arbitration and subsequent suit, Royal and American States admitted partial liability on a products liability theory due to the fryers being unable to latch because the fryers’ baskets did not allow for the latch to close properly.  Travelers refused to defend the suit because they felt that it was outside of its coverage area.  The trial court found in a summary judgment motion that American States covered the injury to Mrs. Gomez and that Travelers had no liability under its “CGL” policy due to the auto exclusion. The trial court held that a food truck is an “auto” because it found that the purpose of the food truck was to transport food, which it determined was cargo.said that American States should be indemnified for any award that they paid on behalf of their insured party.

In American States, Mr. Esmergado Gomez and his wife operated a food truck leased from Royal Catering Company.  After they had finished cooking and selling food for the day, Mr. and Mrs. Gomez were driving back with another passenger to the Royal Catering parking lot where they stored the truck they leased after hours.  Mr. Gomez and the passenger were in the only seats available in the truck, while Mrs. Gomez was standing in the back.  When Mr. Gomez swerved to avoid a collision (a collision that occurred anyway), Mrs. Gomez was burned by an improperly latched fryer.  

Thus, the question put before Justice Mosk and his colleagues was whether a food truck was used to transport food as cargo or was used to cook and distribute food.  In Alpine Ins. Co. v. Planchon (1999) 72 Cal.App.4th 1316, the Court mentioned in dicta that while generally a determination of the use of a vehicle is a question of fact, when the purpose of a vehicle is apparent on its face then such a determination may become a matter of law.  In this case, the Gomezes began their day with two hours of cooking food and then made 12 or 13 stops to reheat, cook and distribute food to customers.  The Appellate Court therefore held that the food truck was not an “auto” under Travelers “CGL” policy, but was instead “mobile equipment.”  Therefore, Travelers did cover the injury to Mrs. Gomez.  Moreover, the Court held that Mrs. Gomez’s injury occurred after the Gomezes had “completed” their work for the day and therefore American States would be indemnified for any award they paid to the Gomezes.

Therefore, Justice Mosk has helped define something that is becoming more and more prevalent around the Southland.  According to the Second Appellate District, a food truck is a restaurant and not just a truck.

Please continue to visit our blog to read more about prominent legal issues affecting the State of California and the Southland. 

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