Category General

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

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.

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

David A. Frenznick Awarded Multiple Accolades in the 2020 Edition of The Best Lawyers in America

Wilke Fleury congratulates attorney David A. Frenznick on his inclusion in the 26th Edition of The Best Lawyers in America© for his work in: Litigation – Real Estate!

In addition, David was also acknowledged as a 2020 “Lawyer of the Year” award recipient. He received this accolade for his work in Litigation – Real Estate in Sacramento. Only a single lawyer in each practice area and community is honored with a “Lawyer of the Year” award.

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 94,000 industry leading lawyers are eligible to vote (from around the world), and have received over 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2020 Edition of The Best Lawyers in America©, 8.3 million votes were analyzed, which resulted in more than 62,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

David A. Frenznick – Litigation, Real Estate

David has extensive and broad experience in the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.

Wilke Fleury Promotes Three Associates To Senior Counsel

Wilke Fleury is pleased to announce that it has promoted three associates to the position of Senior Counsel – Bianca Samuel, Adriana Cervantes and Aaron Johnson – who have demonstrated professional excellence and complement the firm’s multi-generational leadership.

“Bianca, Adriana, and Aaron’s ascension to Senior Counsel status reflects their significant accomplishments and contributions to the firm, both professionally and culturally,” said Dan Baxter, Managing Partner. “We are lucky to have all three of them within our ranks here at Wilke Fleury, and look forward to their successes for our clients.”

Senior Counsel have at least six years of experience delivering high-quality legal work, collaborate with partners on the development and management of key practice areas, and actively mentor junior lawyers.

Bianca Samuel litigates a wide variety of employment matters, including claims for discrimination, retaliation, wrongful termination, and single-plaintiff wage and hour claims on behalf of employers and supervisors before all state and federal courts and administrative proceedings. She conducts independent workplace investigations for public and private entities. She also advises and counsels employers on best practices relating to hiring, discipline, termination, wage and hour issues and training on employment related topics.

Adriana Cervantes defends healthcare professionals and hospitals against claims of medical malpractice, intentional torts, licensing actions for unprofessional conduct, and similar charges. She has successfully litigated cases involving obstetrics and gynecology, neurology, cardiology, infectious disease, radiology, psychiatry, emergency medicine, and many other medical specialties. Her practice extends to matters initiated in both state and federal court, and before administrative boards. Adriana also serves as the Fundraising Director for Operation Protect and Defend (OPD) an organization dedicated to engaging public high school students in a dialogue about the U.S. Constitution and promoting civic engagement.

Aaron Johnson has deep experience in Estate Planning, Business Formation and Transactions, Tax Planning and Controversy Resolution. His work in estate planning focuses on succession planning for individuals, family limited partnerships and closely-held businesses. Aaron specializes in drafting wills, trusts, advance health care directives, durable powers of attorney and related documents. In addition, he assists clients and companies with matters covering the full life cycle of business from formation to succession planning. He has experience forming LLCs and S Corporations, drafting Buy-Sell agreements, Purchase and Sale agreements, corporate minutes, and shareholder agreements, among other business documents. Aaron represents individuals and companies in all aspects of tax planning and controversy resolution before federal and state taxing authorities. His experience includes representing clients in front of the Internal Revenue Service (IRS), Franchise Tax Board (FTB) and the California Department of Tax and Fee Administration (CDTFA).

Wilke Fleury is a thriving midsized general practice law firm located in California’s capital. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury one of the region’s most respected and longstanding law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.

Michael G. Polis Joins Board for The Center for Land-Based Learning

Wilke Fleury Attorney David Frenznick Recognized in 2019 Best Lawyers in America

Wilke Fleury congratulates attorney David A. Frenznick on his inclusion in the 2019 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. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

David A. Frenznick – Litigation, Real Estate

David has extensive and broad experience in the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.

Wilke Fleury and Attorneys Recognized as ‘Best Law Firm’ and ‘Best Lawyers’ by U.S. News!

Wilke Fleury is pleased to announce its inclusion in the 2018 editions of ‘Best Law Firms’ in America and ‘Best Lawyers’ in America. The two award categories reflect excellence in legal service – firms included in the 2018 “Best Law Firms” list are recognized for professional excellence by clients and peers and Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

Wilke Fleury Recognized in U.S. News 2018 Edition ‘Best Law Firms’ in America

Wilke Fleury is honored to be recognized among the nation’s Best Law Firms by U.S. News – Best Lawyers.

“Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.”

Wilke Fleury Attorneys Elected to U.S. News 2018 Edition ‘Best Lawyers’ in America

Congratulations to David A. Frenznick and Ernest James Krtil on their election to the 2018 Edition ‘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. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

David A. Frenznick – Litigation, Real Estate

David has extensive and broad experience in the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.

Ernest James Krtil – Closely Held Companies and Family Business Law

Jim’s depth of experience in his practice emphasizes business law including mergers and acquisitions, nonprofit organization law and taxation, as well as estate planning and probate and trust administration, including trust and estate disputes.

VLOG: Disclosing a Disability Does Not Pardon Past Bad Conduct

Read the full article here: http://www.wilkefleury.com/blog/disclosing-disability-not-pardon-past-bad-conduct/

Disclosing a Disability Does Not Pardon Past Bad Conduct

California employers can establish workplace conduct policies and discipline employees who fail to comply with them.  Employers also have to engage in an interactive process with employees who have a disability to explore reasonable accommodations, if any, to address work limitations from the disability.  However, an employer’s duty to reasonably accommodate an employee’s disability is prospective, meaning that employees are not excused for their past bad conduct just because a disability may have contributed to it when the employer was unaware of the disability at the time the transgressions occurred.  A recent case is instructive.

In Alamillo v. BNSF Railway Company (9th Cir., Aug. 25, 2017), 2017 WL 3648514, an employee sued his employer under California law for wrongful termination based on disability, failure to accommodate his disability, and failure to engage in the interactive process.  The employee had ten unexcused absences during the year.  While the discipline process for the most recent unexcused absences was ongoing, the employee was diagnosed with obstructive sleep apnea (OSA).  The company accommodated the OSA prospectively, but did not excuse the employee for the unexcused absences before it learned about the OSA. As to them, the discipline process continued and the employee was ultimately terminated when the discipline process finished because of the past attendance violations.  The court of appeal upheld the employee’s termination because there could be no failure to engage in the interactive process after the violations had already taken place and because no reasonable accommodation could fix the past absenteeism since reasonable accommodations are prospective.

As this case reminds us, employers do not have to change or excuse employee transgressions that occur before the employer knows about a disability.   Rather, once an employer learns that an employee has a disability, the employer should work with the employee to prospectively address any limitations from it, but past transgressions remain and may subject the employee to discipline notwithstanding the disability.

  By Samson R. Elsbernd

Wilke Fleury Secures $4,000,000 Judgment Against the United States

On August 31, 2017, Senior Judge Lynn J. Bush of the United States Court of Federal Claims issued a $4,000,000 judgment against the United States in favor of Magnus Pacific Corporation, a Wilke Fleury client and one of the leading geotechnical contractors in the country.

Magnus Pacific’s claims arose out of levee restoration work performed for the United States Section of the International Boundary and Water Commission (USIBWC) along the Rio Grande River near Presidio, Texas.

Magnus Pacific’s work took place from approximately April of 2011 through May of 2012, and was performed pursuant to a contract entered into with the USIBWC.  During the course of the project, Magnus Pacific encountered site conditions that differed significantly from those depicted in the project plans and specifications.  Those differing conditions led to significant additional work, and associated cost overruns.  Magnus Pacific requested the USIBWC’s voluntary payment of those additional costs, but those requests were rejected.

Upon completion of the project, and successful construction of the levee under extraordinarily difficult conditions, Magnus Pacific submitted “certified claims” to the USIBWC, again requesting payment of the additional costs incurred.  Once again, those claims were rejected.  Therefore, on October 31, 2013, Wilke Fleury partner Dan Baxter filed a lawsuit in the Court of Federal Claims, advancing three claims on Magnus Pacific’s behalf, and seeking approximately $4,000,000 in damages.  After the completion of significant written discovery, and over a dozen depositions occurring in California, Texas, Mississippi, Arizona, and Massachusetts, a three-week trial took place in August and September of 2016.  At trial, Magnus Pacific was represented by Dan Baxter, assisted by Wilke Fleury paralegal Sharon Brazell.  The United States was represented by three lawyers and two paralegals from the Department of Justice.  After trial, the parties engaged in extensive post-trial briefing, and the case was submitted for decision on January 17, 2017.

On August 31, Judge Bush issued a 110-page reported decision and associated judgment.  Judge Bush found in Magnus Pacific’s favor on all three claims, and awarded Magnus Pacific the principal amount of $3,879,919, plus interest on approximately 3/4ths of that amount.  With such interest, the amount awarded exceeds $4,000,000.

Wilke Fleury is proud of its association with Magnus Pacific (now Great Lakes Environmental and Infrastructure), and pleased at the opportunity to secure a successful outcome for its longstanding client.

See the final reported decision here: Magnus Pacific v. US–Final Reported Decision

  Dan Baxter

Twenty-Five Wilke Fleury Attorneys Selected as Sacramento’s 2017 Top Lawyers!

Congratulations to Wilke Fleury’s Top Lawyers by Sacramento Magazine!

Daniel L. Baxter, Business Litigation; Adriana C. Cervantes, Medical Malpractice; Christine M. Collins, Health Care; Anthony R. Eaton, Business Litigation; Daniel L. Egan, Bankruptcy; Samson R. Elsbernd, Employment & Labor; Daniel J. Foster, Business Litigation;  David A. Frenznick, Business Litigation; Scott L. Gassaway, Medical Malpractice; George A. Guthrie, Real Estate; N. Aaron Johnson, Tax, Estate Planning & Probate; Ernest J. Krtil, Estate Planning & Probate; Ronald R. Lamb, Medical Malpractice; Neal C. Lutterman, Health Care; Stephen K. Marmaduke, Employment & Labor; Robert R. Mirkin, Real Estate; Gene E. Pendergast Jr., Estate Planning & Probate; Michael G. Polis, Health Care; Matthew W. Powell, Business Litigation; Thomas G. Redmon, Real Estate; Bianca S. Samuel, Employment & Labor; Shannon Smith-Crowley, Legislative & Governmental Affairs; Trevor L. Stapleton, Estate Planning & Probate; John R. Valencia, Legislative & Governmental Affairs; Steven J. Williamson, Bankruptcy and Creditor/Debtor

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