Category General


COVID-19 has dramatically impacted most businesses.  Although veterinary practices have demonstrated great resilience in surviving the pandemic, the impacts are considerable.  Processes have changed from the moment a patient enters the clinic until the patient is returned to its owner.  Employment issues have arisen without precedent or guidance creating uncertainty for both employers and employees.  Additionally, managing the physical and mental impacts of the virus itself are considerable.  Given the far reaching general impacts of COVID on veterinary practice, it is a challenge to focus in on and address the range of COVID-related legal issues.  The conundrum is that legal issues and guidance around COVID are changing as rapidly as the challenges the pandemic presents. 

The Families First Coronavirus Relief Act (“FFCRA”) came into effect on April 1, 2020.  Businesses scrambled to adopt the FFCRA without ever having received clear guidance.  Once we developed an understanding on how to approach FFCRA leaves, the FFCRA was replaced in December 2020 by hastily enacted legislation.   The new federal administration is contemplating additional changes that may be put into effect before any guidance is offered on the December 2020 legislation; and before this article is published.  State laws will undoubtably follow and individual counties have not been bashful in issuing their own guidance or orders. 

As lawyers, our goal is to provide clear guidance.  Yet, what appears to be good advice one day may not be the best approach the next week. Things are changing that quickly.  So where do we start?

The best approach is for the veterinary profession to (1) be nimble, (2) rely on available resources, and (3) take defensible positions. 

Be Nimble in Identifying and Responding to COVID Impacts

The veterinary industry has adapted to COVID better than most.  This is not happenstance.  Credit must be given to CVMA’s leadership and the practices themselves in identifying the aspects of the practice impacted by COVID and initiating changes to address them. The simple change to curbside pick-ups afforded protection to owners and staff.  Unfortunately, mandates for social distancing, and employee absences due to necessary quarantine or actual illness, have been problematic and, in some instances, have forced clinics to close.  As the challenges posed by the pandemic continue to evolve and knowledge regarding COVID grows, the approach to responding to COVID-related impacts must also evolve.   Veterinarians as individuals and as a profession must continue to identify changes and take action.   It is the failure to evolve and adapt that can create legal issues and jeopardize safety.

COVID has simply turned some practices — particularly employment practices — upside down.    The plurality and ever-changing nature of issues resembles “wac-a-mole” while the guidelines for addressing these issues are insufficient.  Where do you turn to address issues in a legally cogent manner?  The rights and obligations of employers and employees are unclear  in these unchartered waters.  Adding to the fervor are real health fears, political overlays and religious beliefs.

Whether you are an employer or an employee, you must be nimble.  Anticipate that there will be changes and be flexible to adopt changes.  The saying “we are all in this together” applies to the workplace.

Rely on Available Resources

Multiple governmental agencies have responded to the pandemic by enacting laws, regulations and guidance that in some instances not only overlap, but may be contradictory.  Both the federal government and the state of California have enacted laws  focused on COVID related issues generally and specifically addressing the workplace, such as the FFCRA.  These laws are products of expedited legislative processes and were intended to address immediate issues, which, as we have learned, may quickly change.  Further, California has quickly enacted state laws to augment federal laws. 

To implement these laws, the federal and state administrative agencies, notably the federal Departments of Labor and CalOSHA have issued emergency regulations.  As emergency regulations, they were not fully vetted through the normal administrative process.  Generally, regulations are to be afforded the power of law, but are subject to challenge if they are inconsistent with the laws in place as originally intended.  

Wading further into the mire, some governmental bodies have issued guidance, such as the Center for Disease Control’s (the “CDC”) guidance regarding the response to COVID exposure and illness in the workplace.  There have also been a number of executive orders issued, notably by the California governor.  In some cases, however, it is unclear whether these orders are enforceable, were intended to be enforced or were issued as mere guidance.  Confused?  There’s more! California counties have also been active in enacting their own ordinances, which may be enforced by those counties as well as orders and guidance, the enforceability of which are unclear.

When confronted with a COVID related issue, such as employees testing positive or being forced to quarantine, where do we turn for help?  There is no clear path; and there may be no clear answer. There are some sources, however, to consider, including:

  • CVMA’s Website ( – CVMA has been proactive in posting and updating COVID related information for members on its website.   This is information is often specific to the veterinary industry and is a good “first stop.”
  • CDC Website ( – The Centers for Disease Control and Prevention’s website contains a great deal of information regarding the handling of COVID in the workplace, social distancing, quarantining, and responding to outbreaks.  The CDC issues “guidance.”  The guidance is not legally enforceable, but establishes standards and arguably, “best practices.”
  • U.S. Department of Labor Website ( –  The U. S. Department of Labor issued emergency regulations regarding the FFCRA expanded sick leave and family leave.  The regulations and several FAQs are populated on its website.  Although the initial FFCRA  sick leave and expanded family programs expired on December 31, 2020, an optional sick leave program continues through March 31, 2021.  By the time this article is published, there may be new programs administered by the Department of Labor.
  • Department of Industrial Regulations (CalOSHA) (– Emergency Regulations – CalOSHA’S primary focus is safety in the workplace.  CalOSHA has expanded its role to include not only social distancing and similar COVID-related safety standards, but injuries in the workplace, which includes illness in the workplace.  CalOSHA has adopted regulations to address reporting COVID, workplace responses to exposures, and closures.   These “standards,” which are mandatory were adopted on December 1, 2020, and updated on January 26, 2021.  There is criticism that these regulations may be more expansive than CalOSHA’s legal authority, but they are regulations (at least for now).
  • California Coronavirus Website ( – An ever-changing montage of information for employers and employees.
  • California Educational Development Department (EDD) ( – Its website highlights unemployment benefits available to impacted employees.
  • County Health Department – Most, if not all, counties have websites containing local ordinances and guidance ranging from rent protections to information regarding sick leave.  Many county health departments provide telephonic guidance, particularly with regard to responses to health issues related to COVID.  Surprisingly, you may be able to actually speak with someone if you reach out.

There is a plethora of information online containing analysis and guidance.  Except for the CVMA website, however, the above sources are published by governmental entities and carry their respective authority.

Maintain a Defensible Position

Unfortunately, all too often, some of these sources of guidance are of little assistance.  The issues are ever changing.  The issue may be novel or the guidance contradictory.  In these scenarios, the best approach is take a defensible position that supports safety.  A defensible position is one that is based upon — even if it does not exactly follow — generally accepted guidelines, which specifically includes laws, regulations, ordinances, orders, guidance and other governmental resources.  Depending on the situation a practice may be facing, there may be different options presented.  At that point, reasonable judgment emphasizing safety should be followed.  In the end, the rationale for actions should be documented along with copies or references to the resources supporting the decision.


The challenges of this pandemic are unprecedented and it should be anticipated that things will continue to evolve.  The businesses that avoid legal issues, and the employees that avail themselves of the protections afforded to them, will be those that take affirmative steps in responding nimbly to those challenges, consider the resources available, and if a path is not clear, be flexible in taking a position that is defensible based upon relevant laws, regulations and guidance and an emphasis on public safety. 

By: Stephen K. Marmaduke
Partner at Wilke Fleury

California Mental Health Parity Act (SB 855)

SB 855 (Wiener) is a senate bill that revised provisions in the California Mental Health Parity Act.  SB 855 requires commercial insurers to provide coverage for medically necessary treatment for all mental health and substance use disorders (MH/SUD) in the same manner as applied to other medical conditions.  The law became effective on January 1, 2021 and applies to all commercial plans and policies in the group and individual market regulated by the Department of Managed Health Care and Department of Insurance, respectively. 

SB 855 creates substantive changes affecting commercial plans and policies. Following are just a few changes, of which all commercial plans affected by SB 855 should take note:

  1. Medical Necessity is defined as health care services or products addressing the specific needs of a patient (a) for the purpose of preventing, diagnosing or treating a condition or its symptoms, consistent with accepted standards of mental health and substance use disorder care, or (b) that is clinically appropriate, and not primarily for the economic benefit of the plan or policy, or for the convenience of the patient, treating physician or other health care providers. Please note that members are not precluded from exercising their rights to appeal, submit a grievance, or request an independent medical review, among others.
  2. If the mental health or substance use disorder treatment services are not available in-network in accordance with the geographic and timely access standards, the plan or policy must arrange and provide its members out-of-network services and follow up services that satisfy the geographic and timely access standards. Please note that plans and policies are prohibited from charging members additional cost-sharing fees on any out-of-network services.
  3. For purposes of SB 855, health care providers include the following: marriage and family therapist or trainees, autism service provider, associate clinical social worker, associate professional clinical counselor or trainee, registered psychologist, registered psychological assistant, psychology trainee, as well as healing arts professionals licensed under Division 2 of the Business & Professions Code.

Health care plans and policies must ensure that their contracts are not in conflict with the requirements imposed under SB 855. If you need assistance with updating your plan contracts, policies or provider agreements, health plan licensing or other compliance matters, please do not hesitate to contact us at (916) 441-2430. 

Magaly Zagal (left) is an Associate at Wilke Fleury.

Heather Claus (center) is Of Counsel at Wilke Fleury.

Aaron Claxton (right) is an Associate at Wilke Fleury.

Wilke Fleury Welcomes New Civil Litigation Attorney!

Arielle E. Brown is our new associate at Wilke Fleury!

Prior to joining Wilke Fleury, Arielle practiced Torts and Product Liability, focusing on commercial and consumer breach of warranty law. She also gained extensive courtroom and trial experience as a criminal defense attorney. While at the San Francisco Public Defender’s Office, Arielle personally advocated for clients and tried many jury trials to verdict.

During law school, Arielle tutored Contracts and Torts. She serves on several governing boards, including as Parliamentarian for the Western Regional Black Law Students Association and Executive Lt. Governor for the American Bar Association – Law School Division. She interned at Open Door Legal, where she participated in administrative hearings regarding foster care licensing cases. She also interned at several public defender offices, where she fought for humanity and justice in defense of the damned.

Pandemic Relief Bill to Lower High Health Plan Premiums

The recently passed $1.9 trillion COVID-19 relief bill provides Americans with $1,400 stimulus payments and $7.5 billion for the Department of Health and Human Services and Centers for Disease Control and Prevention. Funds are earmarked for vaccine education, and clinic and mobile unit operation. The bill also includes a significant change strengthening the Affordable Care Act (ACA).[1]  This ACA provision expands ACA marketplace subsidies temporarily, lowering marketplace premiums by providing health insurance premiums for qualified individuals.[2]

Through this package, there will be a significant expansion of subsidies for health insurance to middle-class and low-income individuals for the next two years. Numerous families struggle to pay their monthly healthcare premiums. With this in mind, the new legislation will fully cover premiums for those making within 150% of the federal poverty level (FPL), which is approximately $19,320 annually. Individuals earning more than 400% of the FPL – approximately $51,000 per year – will be able to purchase healthcare plans on the marketplace, with premiums capped at 8.5% of their income. For example, the monthly premium will drop from $1,075 to $412.50 for an individual making approximately $58,000 a year.[3]

The legislation provides relief for those who purchase health insurance through the exchange, particularly those who have plans with high deductibles and low premiums. An individual with a high deductible may be incentivized not to seek health services due to high initial out-of-pocket costs. With this legislation, approximately 14 million enrollees from the marketplace may pay less by purchasing an entirely different plan from those savings.[4] This change is in response to criticisms of unaffordability, causing individuals to opt to not purchase any health insurance.[5] But with this change, the Congressional Budget Office estimates that approximately 1.7 million Americans would enroll within the marketplace, 1.3 million of which are previously uninsured.[6]

Additionally, under the relief package, those who receive unemployment benefits may be eligible to enroll in the exchange this year. Prior, these individuals were not eligible for subsidies on the exchange. This new bill will cover cost of premiums for those who receive health benefits through COBRA.[7]

In addition to the relief package, President Biden opened a special enrollment period due to the pandemic. Open enrollment typically comes only once a year, in which individuals can purchase a health plan through the marketplace. With this special enrollment period, Americans can now enroll until May 15.[8] Though these changes are temporary for now, lawmakers are expecting these subsidies to become permanent. Others note that improvements may continuously be made, following the original goals of the ACA under the Obama administration. The current legislation proposes narrow improvements but additional provisions regarding premium affordability and subsidies may be explored in the future.

Annie Lee was a Law Clerk at Wilke Fleury in the Spring of 2021.

  • [1] Source
  • [2] Source
  • [3] Source
  • [4] Source
  • [5] Id.
  • [6] Id.
  • [7] The Consolidated Omnibus Budget Reconciliation Act (COBRA) allows workers and their families who have lost health benefits due to loss of job continued coverage at a higher cost.‐plans/cobra
  • [8] Source

Wilke Fleury Honors Richard Hoffelt

“We at Wilke Fleury were saddened to learn of the passing of our former Partner Richard “Dick” Hoffelt on February 11, 2021.  Dick was a Partner at our firm for over 50 years and was a highly regarded lawyer in the field of Business and Healthcare Law.  As an active member of the State and Local Bar, Dick served as President of the Sacramento County Bar Association and was one of the founders of the first Legal Aid program in the Sacramento area.  In addition to his law-related activities, Dick was a leading participant in facilitating the move of Shriners Children’s Hospital from San Francisco to Sacramento.  Dick will be genuinely missed by all who knew him.” 

William A. Gould

Wilke Fleury Welcomes New Civil Litigation Attorney

Islam Ahmad represents clients on a broad range of civil ligation matters, with a focus on construction, real estate, and commercial disputes. He has represented all sides of construction and real estate cases, including owners, buyers, developers, and general contractors. He possesses superb legal research and writing skills that ensure no stone is left unturned that may improve the chances of victory for his clients.

Islam Ahmad has a sophisticated working background and a wealth of experience that make him ideal for taking on clients’ challenging cases and resolving them in their best interest. His intuition makes him versatile and capable of dealing with a wide range of issues. Islam is also capable of incorporating business performance factors into his legal advice by drawing from his prior experience as a business consultant. This comprehensive approach allows him and his clients to develop sound risk management strategies and business plans.

Islam Ahmad received his Juris Doctorate Degree from the University of California, Davis School Law and his undergraduate degree in Economics from the University of California, Berkeley. During law school, Islam interned at the United States Court of Appeals for the Ninth Circuit and served at the Civil Rights Clinic. Upon graduating from law school, Islam went to Jerusalem on a mission to use his knowledge to promote peace in his birthplace. He spent three years working on projects aimed at establishing a foundation for rule of law, stimulating economic cooperation, and promoting SME development.

About Islam: Islam is a grateful single father to his three daughters, Hannah, Sheek and Mal. He is fluent in Arabic and possesses elementary skills in Hebrew. When not practicing law, he enjoys coaching and playing soccer, playing video games, and day-trading stocks.

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.   


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.


            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