All posts by Hanna Bowman

Wilke Fleury Attorneys Featured in 2021 Best Lawyers in America and Best Lawyers: Ones To Watch!

Wilke Fleury congratulates attorneys David Frenznick, Adriana Cervantes and Dan Egan on their inclusion in the 2021 Edition of Best Lawyers in America!

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and they have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed.

  • Daniel L. Egan – Recognized in Best Lawyers since 2021
    • First year recognized in Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law: 2021
  • David A. Frenznick – Recognized in Best Lawyers since 2016
    • First year recognized in Litigation – Real Estate: 2016
  • Adriana C. Cervantes – Recognized in Best Lawyers: Ones to Watch*
    • First year recognized in Medical Malpractice Law – Defendants: 2021

These awards are recognitions given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the United States. The “Ones to Watch” recipients typically have been in practice for 5-9 years.

20 Wilke Fleury Attorneys Featured in Sacramento Magazine 2020 Top Lawyers!

Congratulations to Wilke Fleury’s featured attorneys who made the Sacramento Magazine’s Top Lawyer List for 2020!

Each attorney has been awarded an accolade in the following practice areas:

Kathryne Baldwin – Insurance

Dan Baxter – Business Litigation & Government Contracts

Adriana Cervantes – Medical Malpractice

Heather Claus – Health Care

Aaron Claxton – Health Care

Dan Egan – Bankruptcy and Creditor/Debtor

Samson Elsbernd – Employment & Labor

Danny Foster – Litigation Insurance

David Frenznick – Construction & Construction Litigation

George Guthrie – Real Estate & Construction Litigation

Ron Lamb – Medical Malpractice

Neal Lutterman – Medical Malpractice

Steve Marmaduke – Business/Corporate & Real Estate

Gene Pendergast – Estate Planning & Probate

Mike Polis – Health Care

Matthew Powell – Business Litigation

Bianca Samuel – Employment & Labor

Shannon Smith-Crowley – Legislative & Governmental Affairs

Spencer Turpen – Medical Malpractice

Steve Williamson – Business Litigation & Bankruptcy and Creditor/Debtor

The voting for Professional Research Services’ survey to determine the top attorneys in 2020 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. – Sacramento Magazine

Whose Pet Is It, Anyway?

“Whose Pet Is It, Anyway?” was first featured in The Publication of the California Veterinary Medical Association Newsletter: Volume 74 – Number 3

By: Dan Baxter

As most readers of California Veterinarian know, the law firm at which I work provides thirty minutes of free monthly advice to CVMA members with legal inquiries.  Most of those inquiries center around employment-related issues and issues arising out of veterinarian/client/patient interactions. 

In the latter category is a scenario involving competing claims to animal patients that has produced questions to me and my colleagues from several veterinarians in recent months.  Specifically, what should a veterinarian do when more than one ostensible “owner” seeks to take possession of the animal upon its release? 

In one hypothetical, “Mittens” is delivered to Clinic by Jane and left there for treatment.  At some point during Mittens’ stay, Clinic receives a call from John claiming to be Mittens’ “real” owner, and claims that Mittens should only be released to him rather than Jane.  Jane returns to Clinic to pick up Mittens, insists that she is the “real” owner, and demands release of Mittens into her custody.  

One can craft many variations to this hypothetical, from joint delivery of Mittens to Clinic by both Jane and John, to Clinic records that clearly identify Mittens owner as one or the other (or both), to introduction of another person entirely into the fray.  Regardless of the hypothetical’s nuances, what should a veterinarian do when faced with competing claims to possession of an animal patient?

Fortunately, there is guidance….

Figure It Out, People!

But before we get to that guidance, let’s begin with some practical advice.  Each instance in which competing possessory claims are brought to a veterinarian’s doorstep represents an occasion in which animal owners are trying to make their problem your problem.  Not only does a Jane/John imbroglio over ownership and possession place the veterinarian in an uncomfortable position from a client service standpoint, it effectively asks the veterinarian to make a quasi-legal judgment call as to who is the true “owner.”  The “losing” client will naturally hold the veterinarian responsible for this decision, and various business-related ramifications may ensue, from the cessation of that client’s business, to negative social media reviews, to possible VMB and/or legal complaints.         

For these reasons, the first step to take when faced with competing claims is to place the ball back into Jane and John’s court.  In our above hypothetical, if Mittens remains at the clinic, Jane is indicating that Mittens should only be released to her, and vice versa relative to John, the veterinarian should issue a clear communication—preferably in writing—to Jane and John describing the situation, and directing them to figure it out between themselves.  Such a communique should be direct, concise, and forceful, in the manner of the following:

Jane and John:

Yesterday, Mittens was brought for treatment at our clinic.  Following that treatment, we received instructions from each of you that Mittens was only to be released to you, and not to the other.  While we value both of you and appreciate your love for Mittens, your competing instructions place us in the unfair and untenable situation of entering a dispute that only you can resolve.  Therefore, we request that you jointly come to the Clinic today or tomorrow to pick up Mittens, or otherwise reach a resolution between yourselves as to who will do so.  In absence of such a joint decision by you, we will have no choice but to act in conformity with the requirements imposed by the Veterinary Medicine Practice Act.

Please respond as soon as possible.

–Dr. Wendy Smith

More often then not, a communication like the above will bear fruit.  Generally speaking, Jane and John will realize the difficulty of the situation from the veterinarian’s point of view, and understand that is good for neither Mittens, nor the veterinarian, nor Jane and John themselves, for the situation to go unresolved.  Moreover, by invoking “The Law”—in this case, the VMPA—the veterinarian raises the specter of an undesirable outcome outside of Jane and John’s control.  That potential loss of “say” over the outcome will generally produce the cooperation necessary to settle matters.

What Does the Law Say?

But what if matters remain unresolved?  What does the VMPA actually tell us about how to manage this situation? 

The answer comes to us from 16 Cal. Code Regs. section 2032.1, which deals with the veterinary-client-patient relationship (“VCPR”) and how it is created.  While a full discussion of Section 2032.1’s terms is unnecessary to this article, suffice it to say that the existence of a VCPR is specific to the clinical course at issue.  In that vein, Section 2032.1(b) requires the veterinarian to have “sufficient knowledge of the animal(s) to initiate at least a general or preliminary diagnosis of the medical condition of the animal(s),” and further requires the veterinarian to communicate with the client “a course of treatment appropriate to the circumstance.”  This regulatory language shows that a VCPR is not a singular event that covers treatment of an individual animal for all time, but a relationship that operates on a condition-by-condition and circumstance-by-circumstance basis.

Why is this relevant to a discussion of competing possessory claims to an animal?  Because it effectively removes the question of legal ownership from the veterinarian’s calculus.  Returning to our above hypothetical, if Jane is the person who delivered Mittens to Clinic for the treatment at issue, then Jane is the person through whom a VCPR was created.  Accordingly, if Jane and John find themselves at impasse relative to Mittens’ release even after a Clinic communication of the type recommended above, then Mittens should be released to Jane alone, as she is the “client” for relevant purposes.  Tweaking the hypothetical, if Jane and John had jointly delivered Mittens to Clinic, then Clinic may release Mittens to either of them. 

In either hypothetical, or different permutations thereof, a VCPR-centric determination of the issue renders irrelevant the validity of John’s (and Jane’s) claim of “real” ownership, and ultimately relieves—at least from a legal standpoint—the veterinarian from being the arbiter of Jane and John’s possessory dispute.  Moreover, should the “losing” claimant be so dissatisfied with the veterinarian’s determination as to file a VMB complaint or take other legal action, there is a good argument that the veterinarian’s acts consistent with Section 2032.1 would provide “safe harbor” against an adverse determination against the veterinarian.

This same “safe harbor” argument applies in a variety other of ownership-related disputes (which oftentimes are found between divorcing couples), including the following:

• Medical Records:  After Jane brings Mittens to clinic, John calls Clinic, states that there has been a relationship split and that Mittens is now ‘his,” and requests that Mittens’ medical records not be released to Jane.  However, because the VCPR is with Jane, Clinic’s obligations relative to the records flow to Jane, not John.

• Treatment-Related Discussions:  Similarly, after Jane brings Mittens to clinic, John calls Clinic stating that he—and not Jane—is the owner, and that Clinic should not provide any further information to Jane concerning Mittens’ care, treatment, condition, progress, etc.  Once again, since Jane brought Mittens to Clinic, the VCPR is with Jane, not John.

• “Stray” Animals:  Jane brings Mittens to Clinic claiming Mittens is a stray, and leaves Mittens at Clinic for treatment.  Then, John appears at Clinic claiming to be Mittens’ owner and demands return of Mittens to him, as well as a summary of Mittens’ records.  Here, too, the VCPR is with Jane, not John, such that Clinic has no obligations to John.   

Conclusion

In the end, clear communication is key, and the likelihood is that most competing possessory claims will be resolved through a short and plain statement like that composed above.  However, if communicative efforts fall short, let your path forward be guided by the provisions of Section 2032.1, and the parameters of the VCPR.        

15 Wilke Fleury Lawyers Recognized in 2020 Northern California Super Lawyers and Rising Stars Lists

Wilke Fleury is proud to announce that 15 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2020 Northern California Super Lawyers magazine.

Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys.

Each Wilke Fleury attorney was highlighted as Top Rated in the following practice areas:

Dan Baxter – Top Rated Business Litigation Lawyer, Top 25 Sacramento Super Lawyer, Top 100 Northern California Super Lawyer

Steven J. Williamson – Top Rated Business Litigation Lawyer

Aaron R. Claxton – Top Rated Health Care Lawyer

Heather M. Claus – Top Rated Health Care Lawyer

Anna G. Thomas – Top Rated Health Care Lawyer 

Michael G. Polis – Top Rated Health Care Lawyer

Neal C. Lutterman – Top Rated Professional Liability: Defense Lawyer

Ronald R. Lamb – Top Rated Medical Malpractice Lawyer

Adriana C. Cervantes – Top Rated Personal Injury Medical Malpractice: Defense Lawyer

Daniel L. Egan – Top Rated Bankruptcy Lawyer

Samson R. Elsbernd – Top Rated Civil Litigation: Defense Lawyer

Bianca S. Samuel – Top Rated Employment Litigation: Defense Lawyer

Stephen K. Marmaduke – Top Rated Business/Corporate Lawyer

David A. Frenznick –Top Rated Construction Litigation Lawyer

George A. Guthrie – Top Rated Construction Litigation Lawyer

Compliance Still Required Despite Relaxing of HIPAA

Some impacted healthcare entities, tasked with complying with myriad state and federal rules pertaining to privacy, may be aware that certain HIPAA privacy regulations have been relaxed due to the COVID-19 outbreak.  Despite this, these entities should be aware that enforcement of certain HIPAA obligations continues.

The Office for Civil Rights (“OCR”) at the Department of Health and Human Services (“HHS”) is responsible for enforcing certain regulations issued under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, to protect the privacy and security of protected health information, namely the HIPAA Privacy, Security and Breach Notification Rules (the “HIPAA Rules”).  On March 15, 2020, the U.S. Secretary of HHS, Alex Azar, issued a limited waiver of certain provisions of the HIPAA Privacy Rule  in order to address additional challenges placed on healthcare providers during the national emergency. Secretary Azar exercised the authority to waive sanctions and penalties against a covered hospital that fails to comply with limited provisions of HIPAA. The provisions that were waived include but are not limited to the following:

  • the requirements to obtain a patient’s agreement to speak with family members or friends involved in the patients care (45 CFR § 164.510(b));
  • the requirements to honor a request to opt out of the facility directory (45 CFR § 164.510(a));
  • the requirement to distribute a notice of privacy practices (45 CFR § 164.520);
  • the patient’s right to request privacy restrictions (45 CFR § 164.522(a)); and
  • the patient’s right to request confidential communications (45 CFR § 164.522(b)).

HHS has also specified that OCR will utilize its enforcement discretion by not imposing penalties for noncompliance with the HIPAA rules requiring covered providers in connection with the good faith provision of telehealth during the COVID-19 pandemic, in an effort to bolster telehealth utilization.

However, healthcare providers, plans, and others are still required to follow all other HIPAA requirements, including the Minimum Necessary Rule (45 CFR § 164.502(b), 164.514(d)). Under the Minimum Necessary Rule, covered entities are required to limit unnecessary or inappropriate access to and disclosure of protected health information. This requirement applies today, despite the burden this may place on healthcare providers and other healthcare entities during the current national emergency.

_____

Heather Claus and Aaron Claxton are healthcare attorneys at Wilke Fleury. Their practices include assistance with health care service plans, insurance regulatory matters and healthcare litigation.

Wilke Fleury Welcomes New Healthcare Associate

Kristin I. Moya joins Wilke Fleury as a Healthcare Attorney.  She graduated from McGeorge Law School with her Juris Doctor and Certificates of Concentration in Health, Business, and Tax.  She served as a legal intern at California Department of Public Health researching issues related to corporate law and due process for quarantine of persons.  Further, she served as a Certified Legal Intern at the Elder and Health Law Clinic at McGeorge. Ms. Moya participated in the establishment of their Medical-Legal Partnership Clinic, as well as, assisted clients with their estate planning needs, SSDI and OPM issues, criminal record clearance, and expungement of fines and fees.

Additionally, Ms. Moya has extensive background in healthcare, with experience in healthcare administration and an expertise in bedside clinical practice.  Prior to law school, she graduated with her Master of Science in Nursing from the University of California, Los Angeles, and worked as a Registered Nurse in various hospitals in San Joaquin and Stanislaus County.  Moreover, Ms. Moya worked in leadership roles, where she engaged in negotiations to become third-party service providers to the hospitals; managed staff; collaborated and mediated disputes with the healthcare team and hospital administration; and served as a liaison to the Joint Commission for the hospitals.  Prior to nursing school, Ms. Moya served as an administrative intern under the Chief Nurse Officer of a community hospital.  Furthermore, she aided in the successful opening of an ESRD clinic in Stockton, California. 

About Kristin: Kristin is a Stockton native.  She enjoys spending time with family and friends.  She is often found in the kitchen testing or creating new recipes for everyone to try.  She also spends her time traveling the world or reading cookbooks for culinary inspiration.   Kristin also loves cross-stitching, yoga, and learning a new crafts and hobbies.

Understanding Cannabis and Industrial Hemp in Veterinary Medicine

“Cannabis and Industrial Hemp: Still a Sticky Wicket” was first featured in The Publication of the California Veterinary Medical Association Newsletter: Volume 74 – Number 2

By: Dan Baxter

If you have been closely following the legal landscape attending to the use and discussion of cannabis in a veterinary application, you are familiar with the fact that 2019 provided little clarity on what veterinarians can and cannot do.  As practitioners muddled through 2019 with almost no direction as to what was permissible, the hope was that the Veterinary Medical Board’s end-of-year guidelines would clarify matters, and take us into 2020 with a clear—or at least clearer—roadmap regarding veterinary rights and obligations.  While the VMB produced those guidelines in advance of their required publication date, and provided content that draws important distinctions between cannabis and industrial hemp (discussed below), it also left many questions unanswered.  

What Happened in 2019?

On January 1, 2019, Assembly Bill 2215 went into effect.  That bill, among other things, placed Business and Professions Code section 4884 onto the books.  Section 4884 provides as follows: 

(a)        A licensee shall not dispense or administer cannabis or cannabis products to an animal patient.

(b)        Notwithstanding any other law and absent negligence or incompetence, a veterinarian licensed under this chapter shall not be disciplined by the board or have his or her license denied, revoked, or suspended solely for discussing the use of cannabis on an animal for medicinal purposes.

(c)        On or before January 1, 2020, the board shall adopt guidelines for veterinarians to follow when discussing cannabis within the veterinarian-client-patient relationship.  These guidelines shall be posted on the Board’s Internet Web Site.

Pending the VMB’s adoption of the “guidelines” directed in subdivision (c), veterinarians were generally writing on a blank slate for purposes of determining the permissible parameters of the “discussion” authorized in subdivision (b).  For instance, if the statutory authorization to “discuss[] the use of cannabis on an animal for medical purposes” did not include the ability to make recommendations regarding that use (for or against), the “discussion” authorization was effectively meaningless.  All practitioners really knew was that said authorization did not permit a veterinarian to “dispense or administer cannabis or cannabis products,” as that conduct is affirmatively prohibited by subdivision (a).

Also newsworthy in 2019 was the introduction of Senate Bill 627 (Galgiani).  That bill would repeal the provision prohibiting veterinarians from dispensing or administering cannabis or cannabis products to an animal patient, and would authorize veterinarians to discuss the use of, and issue a recommendation for the use of, cannabis for conditions in which it would provide relief.  The bill would also allow a primary animal caregiver—on a veterinarian’s recommendation—to purchase cannabis products for use on an animal that the caregiver owns.  Although the bill was unsuccessful in 2019, it is operating on a two-year time horizon, and will thus be again up for consideration in 2020.

In December, the VMB issued the aforementioned “guidelines” required under Business and Professions Code section 4884(c).  (www.vmb.ca.gov/forms_pubs/cannabis_discussion.pdf)   Those guidelines are closely modeled on those previously issued by the California Medical Board, and contain content drawn from existing statutes and regulations, including content relating to the formation of the veterinarian-client-patient relationship (VCPR), recordkeeping requirements, conflicts of interest, and advertising.  The recordkeeping-related guidelines stress the importance of providing “advice about potential medical risks of the medical use of cannabis,” and urge clinicians to “remind[] the client that cannabis is not being recommended or prescribed by the veterinarian.”  Hence, under the VMB’s guidelines, the bottom line as to cannabis is that as a veterinarian, you can talk about it, but you cannot recommend it, and whatever you talk about, you had better document.     

Industrial Hemp and CBD Oil

The above synopsizes the current state of play relative to the ability of veterinarians to discuss cannabis with clients.  However, what is meant by “cannabis” in this context? California’s definition of “cannabis” is set forth in Health & Safety Code section 11018, and does not include “industrial hemp.”  “Industrial hemp,” in turn, is defined in Section 11018.5, and “means a crop that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent (0.3%) tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.”  These provisions, as well as similar federal laws, make clear that industrial hemp—unlike cannabis—is not a controlled substance, and is thus regulated by the state and federal agricultural departments, as well as the FDA, rather than the DEA.

Why does this matter? The answer is simple: Popular products such as cannabidiol (CBD) oil are generally derived from industrial hemp, as defined above, rather than cannabis.  As to industrial hemp, the VMB’s guidelines—after listing the relevant regulating entities—read as follows:

[I]f a veterinarian administers, dispenses, furnishes, recommends, or discusses the use of industrial hemp in an animal patient, the veterinarian would not be subject to the statutory provisions regarding cannabis but would be subject to the provisions of the Veterinary Medicine Practice Act applicable to diagnosing, prescribing, or administering a drug, medicine, appliance, application, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease of animals. (Bus. & Prof. Code § 4826 (b),(c).)  In addition, a veterinarian who manufactures, markets, or sells drugs not approved by the FDA is in violation of federal law. Industrial hemp is not tested or regulated in the same manner as cannabis, so the veterinarian should use caution when administering, dispensing, furnishing, recommending, or discussing industrial hemp and ensure the product to be used is industrial hemp and not cannabis and should only do so after the industrial hemp product has been approved by the FDA for use in animals.

The VMB’s closing comment reflects the fact that FDA approval is necessary before industrial hemp may be used in a clinical application.  In that regard, under the Federal Food, Drug and Cosmetic Act (FFDCA), any product used to diagnose, cure, mitigate, treat, or prevent disease in animals is a drug that requires FDA approval. 

As of this writing, industrial hemp has not yet received such FDA approval; indeed, the FDA has indicated that the sale of any CBD or hemp product in food as a (human) dietary supplement is not legal.  Accordingly, it is unclear what the FDA’s final policy in this area will be and how that policy will look relative to a veterinary application.  In the meantime, as noted in the CVMA’s recently-issued “Cannabis and Industrial Hemp FAQs” (September 12, 2019, available at cvma.net/wp-content/uploads/2019/09/Cannabis-and-Industrial-Hemp-FAQ_9-13-19.pdf), “veterinarians should exercise caution to understand the legal status of any hemp or CBD products utilized for therapeutic purposes.”  

So What Can You Do?

To date, the VMB has not seemed eager to launch aggressive enforcement measures to prohibit veterinary use of cannabis and industrial hemp products.  However, the VMB’s guidelines do place veterinarians on notice that the Board is by no means blessing the use of those products.  While it is perhaps unlikely that the VMB would independently come after a practitioner for, as an example, displaying or recommending the use of CBD oil, it is not a remote possibility for a veterinarian to be cited for such conduct in the context of another VMB-related procedure, such as a complaint-driven investigation or even a site inspection.  At this point, the VMB’s intentions regarding whether and how to enforce prohibitions on cannabis and industrial hemp are simply not clear.  Short of the VMB’s issuance of a more detailed position statement, only time and experience will tell.

While we wait to see what happens with SB 627 in 2020, the current bottom line is that if a veterinarian is going to prescribe, furnish, or recommend any substance for use on an animal, including CBD oil, it should be FDA-approved for such use.  Unless and until that occurs, veterinarians who engage in such conduct leave themselves open to VMB citation, including for “unprofessional conduct” under Business and Professions Code section 4883(g).  Veterinarians should also be wary of industry representatives claiming that CBD oil and like products may permissibly be used, sold, displayed, et cetera, in a clinical setting.

STATEMENT REGARDING COVID-19 AS WE CONTINUE TO PROVIDE LEGAL SERVICES

Dear Clients & Friends:

Sacramento County issued out an order on March 17, 2020 that all residents are to “shelter in place” with the exception of “essential activities” such as grocery shopping, health care appointments, etc.  Please know that Wilke Fleury LLP remains committed to providing legal services to our clients during this unprecedented time.

Our team will keep you updated as to government mandates regarding the Courts and are available for any legal needs you may have. Our attorneys and staff are working via secure remote connections and, to the extent possible, we will have at least one person in the office during the weeks ahead to tend to mail and client outreach.  As such, we expect little to no business interruption on our end, but understand that some of your work, and the ability to work with us, may be impacted by business closures, personal health precautions, and care and concern for loved ones.

If, in the unlikely event that, you are unable to reach a Wilke Fleury attorney or staff member, please contact the firm’s Executive Director, Kellie Narayan, via email at knarayan@wilkefleury.com.  We are here for any questions or concerns you may have as we all navigate this time together.

Stay safe and let us know how we can help.

Steve Williamson
Managing Partner

Wilke Fleury Secures Bid Protest Denial

After the City of Vacaville, following a sealed bid process, awarded a significant well drilling contract to Roadrunner Drilling & Pump Company, second-place bidder Nor-Cal Pump and Well Drilling filed a protest with the City on January 30, claiming that Roadrunner’s bid failed to meet certain requirements of the proposed contract.  Roadrunner hired Wilke Fleury to defend the bid protest.  After Wilke Fleury partner Dan Baxter transmitted a letter to the City explaining why the disgruntled bidder’s protest was factually and legally unsupported, the City—a mere nine days after receiving Dan’s letter—rejected the bid protest, and maintained its award of the project to Roadrunner as the lowest responsive and responsible bidder.

Wilke Fleury wishes Roadrunner the best of luck in completing this important municipal project!

Understanding the California Consumer Privacy Act

The recently enacted California Consumer Privacy Act (“CCPA” or the “Act”) goes into effect on January 1, 2020 and with it comes enhanced consumer protections for California residents against businesses that collect their personal information.  Generally speaking, the CCPA requires that businesses provide consumers with information relating to the business’ access to and sharing of personal information.  Accordingly, businesses should determine whether the CCPA will apply to them and, if so, what policies and procedures they should implement to comply with this new law.

Application of the CCPA

            Importantly, the CCPA does not apply to all California business.  The requirements of the CCPA only apply where a for-profit entity collects Consumers’ Personal Information, does business in the State of California, and satisfies one or more of the following: (1) has annual gross revenues in excess of twenty-five million dollars ($25,000,000); (2) receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or (3) derives 50 percent or more of its annual revenues from selling consumers’ personal information. (California Code of Civil Procedure § 1798.140(c)(1)(A)-(C).)  Thus, as a practical matter, small “mom and pop” operations will likely not be subject to the CCPA, but most mid-size and large companies should review their own books or consult with an accountant to determine whether the CCPA applies to their business.

Rights Granted to Consumers

            “Consumers,” as the term is used in the CCPA, means “any natural person who is a California resident…”  (California Code of Civil Procedure § 1798.140(g).)  This broad definition makes no carve-outs or exclusions for a business’s employees and, despite the traditional definition of the term “consumer,” does not seem to require that the resident purchase any goods or services.  This definition seems intentional and was likely designed to prevent businesses from attempting to circumvent the requirements of the CCPA by arguing that the personal information they collect does not belong to “consumers” under the traditional meaning of the word.

While the term “consumer” includes employees, Civil Code Section 1798.145(g) (effective January 1, 2020) makes a limited time exception for “personal information that is collected by a business about a natural person in the course of the natural persons acting as … an employee of… that business to the extent that the natural person’s personal information is collected and used by the business solely within the context of the natural person’s role or formal role as… an employee…”  This exception is currently set to lapse on January 1, 2021, at which time personal information relating to employees will presumably be subject to the requirements of the CCPA.  An example where employee personal information could be subject to the CCPA is data related to employee benefits or geo-location data gathered from employee use of rideshare programs like Lyft or Uber.

            Under the CCPA, all Consumers possess the following four rights in relation to their personal information:

  • The right to request that a business disclose to the consumer the categories and specific pieces of personal information the business has collected, the purposes for which the personal information is used, and the sources from which the personal information was collected;
  • The right to request that a business delete any personal information about the consumer which the business has collected from the consumer;
  • The right to direct a business that sells personal information about the consumer to third parties not to sell the consumer’s personal information; and
  • The right to not be discriminated against by a business as a result of exercising his or her rights under the CCPA.

Moreover, businesses are required to disclose the existence of these rights to the consumers at or before the point of collection of the information.  Typically, this is done pursuant to the business’ privacy policy which is disclosed to the consumer at the outset of their relationship with the business.  For 2020, businesses that must comply with the CCPA should consider reviewing their existing privacy policies to ensure that they provide all required notices and prepare policies and procedures for handling requests from consumers for information relating to their personal information.

What Constitutes Personal Information?

            “Personal Information,” as that term is used in the CCPA, has an expansive definition and includes all information that identifies, relates to, describes, is capable of being associated with, or could be reasonably linked with a particular consumer or household, and includes, but is not limited to:

  • Identifiers such as real name, alias, postal address, unique personal identifier, online identifier, IP address, email address, account name, social security number, driver’s license number, passport number, or similar identifiers;
  • Characteristics of protected classifications under California or federal law (religion, race, national origin, etc.);
  • Commercial information, including records of personal property, products or services purchased, obtained, or considered, and other purchasing or consumer histories or tendencies;
  • Biometric information;
  • Internet activity, including browsing history, search history, and information regarding a consumer’s interaction with a website, application, or advertisement;
  • Geolocation data;
  • Audio, electronic, visual, thermal, olfactory, or similar information;
  • Professional or employment-related information; and
  • Education information.

Regardless of whether a piece of information is specifically identified as personal information under the CCPA, the key inquiry is whether information may reasonably be linked with a particular consumer or household.  If so, it likely constitutes personal information under the CCPA and is subject to the consumer rights identified therein.

Penalties for Violation of the CCPA

            Businesses subject to the CCPA face onerous penalties for any violation.  Specifically, if a business fails to cure any alleged violation within thirty (30) days after being notified of alleged noncompliance, the business will be subject to an injunction to stop its noncompliant activity and face civil penalties of not more than ($2,500) for each violation or ($7,500) for each intentional violation.  It is unclear from the statute whether the “each violation” language means a single instance of non-compliance regardless of the number of consumers affected or whether each affected consumer constitutes an individual violation.

            Alongside these civil penalties, consumers whose personal information is subject to unauthorized access and exfiltration, theft, or disclosure as a result of the business’ violation of the duty to implement and maintain reasonable security procedures may bring a civil action to recover not less than $100 and not greater than $750.  However, consumers must provide businesses with 30 days’ written notice of the violation and an opportunity to cure before bringing such a suit.  While these penalties are relatively small on a per consumer basis, class-action lawsuits can be initiated, which could result in significant potential liability to non-compliant companies.

Conclusion

            In advance of January 1, 2020, businesses should evaluate whether they are subject to the requirements of the CCPA and begin formulating policies and procedures to handle any potential consumer requests thereunder.  Regulations relating to the Act are not yet finalized but businesses should keep an eye for finalized regulations in the next several months, which may provide guidance for implementing procedures that comply with the CCPA.

Kevin Bonsignore is an Associate at Wilke Fleury and focuses his practice on general business litigation, bankruptcy, and real estate.

Trial Victory in San Mateo County!

Wilke Fleury attorneys Adriana Cervantes and Matt Powell recently prevailed at trial in a case involving a real property dispute in San Mateo County. 

Wilke Fleury represented the owner of an apartment building in an action against an individual who recently acquired the duplex on the adjoining property. As set forth in the pleadings, the Apartment’s owner, tenants, and invitees, used the property in many ways including access, parking, and recreational purposes for over five years, and the new owner had actual notice of that use before the purchase. Nonetheless, the new owner insisted the Apartment had no right to use the property, and filed an action to quiet title.

Wilke Fleury filed a cross-complaint on behalf of the Apartment alleging that it had a prescriptive easement over the property. 

Following a three day trial, which included viewing of the property, the Honorable Nancy L. Fineman agreed with Wilke Fleury, ruling that the Apartment had acquired a prescriptive easement over the property.  On (October 24, 2019), Judge Fineman issued a decision allowing the Apartment to continue its use of the property. 

The Court’s decision adopted every argument made by Wilke Fleury and rejected every argument made by the buyer of the duplex.

A copy of the Court’s Judgment is available here.

Navigating California Medical Care Through a Telehealth Practitioner

Medical care continues to evolve given the use of electronic media and communication, and a number of large health care practitioners are turning to telehealth as a method to provide medical care to a greater number of patients who reside in California’s rural communities. Before embarking on a telehealth practice, a practitioner must first be licensed by the Medical Board of California if the care provided involves California residents. If a physician is not licensed in California and provides care to a California resident, the physician has violated California law and could be subject to substantial fines and possible imprisonment.

Telehealth Advancement Act
In addition to the above requirement that the physician must be licensed in California, a telehealth practitioner is subject to the Telehealth Advancement Act, which became effective on September 18, 2004. The Act describes the mode of delivering health care in a system that provides “real-time” interaction via “communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care.” Simply interacting via telephone and e-mail is insufficient to constitute providing “telehealth” medical care in accordance with California law.

Conduct an “Appropriate Prior Examination”
Moreover, to the extent that a patient is treated via “telehealth” medical services, a practitioner may prescribe a drug or device after conducting an “appropriate prior examination.” While various commentators have differing opinions of what constitutes “an appropriate prior examination,” it is commonly acknowledged that a physical examination is not the sole method of obtaining “an appropriate prior examination.” Thus, an interactive and sophisticated real-time communication system that has the capability of gathering current and detailed medical information — by way of a medical interview of a patient, allergies and medical history — could suffice as an “appropriate prior examination.” An exchange of random emails that are not detailed enough to constitute “an appropriate prior examination” would not permit a physician to prescribe pharmaceuticals, and could be deemed insufficient to justify providing health care via “telehealth.”

Consequences of Providing Telehealth Services Without an “Appropriate Prior Examination”
If a physician prescribes medication without “an appropriate prior examination,” the prescribing physician is subject to a $25,000 per occurrence fine. Thus, it is imperative that a physician who provides “telehealth”, and then prescribes medication as a result of his or her diagnosis of the patient, complete a thorough and detailed medical examination. While a physical examination is not required to constitute “an appropriate prior examination,” the medical examination that is provided must be detailed, which includes gathering his or her patient’s current medical condition, existing allergies and complete medical history of the patient.

Adherence of the California Medical Practices Act and Appropriate Regulations
Lastly, a telehealth provider must comply with the California Medical Practices Act and appropriate regulations regardless of where the provider is located. Consequently, a provider is required to file an application with the medical board if the provider desires to use a fictitious name. In addition to the physician being licensed in California, a professional medical corporation that provides telehealth services must be incorporated as a California corporation and is subject to California’s prohibition against the lay practice of medicine. Thus, the shareholders of the professional medical corporation are subject to scrutiny and must be designated health care professionals.

Navigating the requirements to become a telehealth provider and provide telehealth services can be challenging. A physician or medical group exploring or attempting to provide telehealth services should consult with an experienced healthcare attorney to ensure compliance with all state and federal regulations pertaining to telehealth services and providers.

By: Michael G. Polis 

Natural Disasters and the Employer’s Duty to Pay Employees

Recent natural disasters such as Hurricane Dorian and The Camp Fires in Butte County, California have left employers wondering whether they would be required to pay their employees during a temporary closure caused by a natural disaster. The answer varies depending on whether the employee is exempt from overtime (exempt employee) or subject to overtime (nonexempt employee).

For exempt employees, it generally depends on how long the natural disaster lasts.  Exempt employees usually get their full salary for any workweek in which they perform any work.  This means that if the temporary closure caused by a natural disaster is only for a partial workweek, then the exempt employee will continue to receive her full salary for that workweek.  However, the employer might be able to require the employee to use leave, if any, for the absence(s).  On the other hand, if the temporary closure is for an entire workweek (and the employee is not working remotely), then the exempt employee would not continue to receive her salary for that workweek. 

Limited exceptions exist for when an exempt employee’s salary may be reduced for full-day absences for personal reasons other than sickness or disability.  The federal Department of Labor has opined that an employee’s failure to report to work because of transportation issues during inclement weather when the office is open is an absence for personal reasons.  The position of the California Department of Labor Standards Enforcement is not clear.  Employers should exercise caution before reducing an exempt employee’s salary because they can jeopardize the employee’s exempt status by making improper salary deductions.

Different from exempt employees, non-exempt employees generally only get paid for the hours they actually work.  This means that if a natural disaster prevents non-exempt employees from reporting to work or there is no work to report for, they do not get paid.  California wage orders also contain an exemption from reporting time pay requirements for natural disasters.  Finally, employers should be aware of their own agreements or policies because employers can change the general rules for exempt and nonexempt employees through employment contracts, labor contracts and employment policies providing that the employees will be paid during temporary closures caused by a natural disaster. 

Twelve Wilke Fleury Attorneys Selected as Sacramento’s 2019 Top Lawyers!

Congratulations to Wilke Fleury’s featured attorneys who made the Sacramento Magazine’s Top Lawyer List for 2019!

Each attorney was awarded a Top Lawyer accolade in the following practice areas:

David Frenznick: Commercial Law
Dan Egan: Bankruptcy & Creditor/Debtor
Dan Baxter: Business Litigation, Government Contracts
Adriana Cervantes: Medical Malpractice
Mike Polis: Healthcare
Steve Williamson: Bankruptcy & Creditor/Debtor
Gene Pendergast: Estate Planning and Probate
George Guthrie: Commercial Law, Insurance
Danny Foster: Litigation: Insurance
Ronald Lamb: Medical Malpractice
Aaron Claxton: Healthcare
John Valencia: Legislative & Governmental Affairs, Government Contracts

The voting for Professional Research Services’ survey to determine the top attorneys in 2017 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. – Sacramento Magazine

Wilke Fleury Attorneys Awarded Sacramento Business Journal’s Best of the Bar

Wilke Fleury congratulates attorneys Dan Egan, Steve Williamson and David Frenznick on their inclusion in the Sacramento Business Journal 2019 Best of the Bar!

The Sacramento Business Journal annually honors the region’s top attorneys after a rigorous process of selection. To be awarded the Best of the Bar, attorneys are nominated by fellow attorneys and then vetted by a panel of peers.

Wilke Fleury is thrilled to celebrate our attorneys awarded this distinction and looks forward to the attorney’s profiles in the Sacramento Business Journal’s special ‘Best of the Bar’ publication!