David Weiland and Greg Norys

Transcription

1 A Newsletter from Coleman & Horowitt, LLP, Attorneys At Law FALL 2014 In This Issue: Welcome New Partner & Associate...1 Overtime vs. Make-up Time by Rema Koligian...2 Practice Area: Professional Liability and Tort Defense...2 Recent Developments Firm Directory West Shaw Ave., #116 Fresno, CA Ph: (559) Fax: (559) Century Park East, #404 Los Angeles, CA Ph: (310) Fax: (310) Coleman & Horowitt, LLP adds David Weiland and Greg Norys Coleman & Horowitt, LLP determined, when the firm was first formed, that it would not add attorneys unless it added value to our clients. The firm was fortunate to add talented attorneys last year that broadened the scope of our practice. We are now pleased that David J. Weiland and Gregory J. Norys, have joined the firm as partner and associate. David J. Weiland, an experienced trial lawyer, joins the firm s Fresno office as a partner and head of the firm s litigation department. David previously served as a partner and managing shareholder of the Fresno firm Dowling Aaron Incorporated. David, a registered civil engineer, represents clients in complex commercial, construction, real estate, professional liability defense, tort defense, as well as municipal law, real estate transactions, and land use matters. He is a graduate of California State University, Fresno, where he received a degree in engineering, and San Joaquin College of Law, where he currently serves on the school s board of trustees. David has been named a Super Lawyer by Thomson Reuters from 2009 to 2014 (making the total number of firm Super Lawyers and Rising Stars 9) and holds an AV -preeminent rating from Martindale Hubbell. David is a member of the Fresno County Bar Association, Association of Business Trial Lawyers, and the Legal Affairs Committee of the Association of General Contractors. Gregory J. Norys joins the firm s Fresno office where he will work in the firm s litigation department. Greg, a former shareholder of the Fresno firm Dowling Aaron Incorporated, is a graduate of California State University, Fresno, where he received a degree in business administration before attending San Joaquin College of Law. Greg will represent clients in complex commercial, construction, real estate, professional liability defense, tort defense, as well as municipal law, real estate transactions, and land use matters. Greg is a member of the Fresno County Bar Association and the Association of Business Trial Lawyers. Please join us in welcoming David and Greg.

2 Overtime vs. Make-Up Time by Rema M. Koligian Many employers struggle with the difference between when they must pay an employee overtime versus when an employee can work extra hours to make up time without additional pay. Mistakes made on this front can result in costly penalties for employers. Under California law there are definite rules governing the distinction between overtime and make-up time, which are discussed in this article. California Labor Code ( Labor Code ) 204 sets forth, in part, the obligation of an employer to pay employees twice monthly all wages due and owing for hours worked. It requires all wages earned for labor in excess of the normal work period be paid to an employee no later than the payday for the next regular payroll period. An employee may be entitled to overtime, or one and onehalf times their regular rate of pay, for any time worked in excess of eight hours per day or 40 hours per week. Thus, although an employee may only work a total of 30 hours per week, they would still be entitled to overtime if it consisted of three ten-hour days. This would result in six hours of total overtime. There is an exception to this rule found under Labor Code 513. Pursuant to Labor Code 513 an employee may, by written request, seek to make up work that will be lost as a result of a personal obligation of the employee s if the hours of the make-up time are performed in the same work week in which the work time is lost. Such additional hours worked may not be counted towards the total hours worked in a day, except for hours in excess of 11 hours of work in one day or 40 hours worked in a week. Under Labor Code 513 an employer is prohibited from encouraging or soliciting an employee to request the employer s approval to take personal time off and make up the work hours in the same week. Additionally, an employer cannot schedule an employee to work in excess of eight hours on one day and allow the employee to leave early on another day as the request must be at the employee s request, made in written form, and signed by the employee for the employer to then approve. Failure to comply with the Labor Code results in payment of overtime for the hours worked in excess of eight hours per day or 40 hours per week at the increased hourly rate. It also subjects employers to statutory penalties, which can include attorney s fees. To help eliminate the potential wage and hour violation, employers should maintain updated employee handbooks with a specific policy and procedure for make-up time. The policies and procedures should set forth the requirement that a written request be made, a deadline for all requests to be submitted, and the guidelines for the time and timing that the hours can be made up. This is a somewhat tricky area of the law. Thus, if you don t yet have a policy, now is the time to create one. If you have one, but don t know if it is current enough to protect you, have it reviewed by an attorney. The author, Rema M. Koligian, is an associate with Coleman & Horowitt, LLP, where she works in the firm s litigation department. Rema is a graduate of UC Irvine and the University of the Pacific McGeorge School of Law. Rema is a member of the Board of Directors of the San Joaquin Valley Chapter of the Association of Business Trial Lawyers and has been named a Rising Star by Super Lawyers, representing the top 2.5% of lawyers practicing under ten years. Rema represents clients in labor and employment disputes, complex, business, real estate and unfair competition litigation and alternative dispute resolution. She can be reached at (559) , ext. 117 and at rkoligian@ ch-law.com. Practice Area: Professional Liability and Tort Defense Since its inception, Coleman & Horowitt has represented insureds in professional liability, directors and officers liability, and casualty insurance claims. With the addition of David J. Weiland and Gregory J. Norys, the firm can now offer expanded services in these areas. Firm attorneys have handled professional liability claims, including medical malpractice, attorney malpractice, insurance agent and real estate agent E&O claims, as well as architect and engineer E&O claims. Firm attorneys have also handled complex directors and officers liability claims, including securities fraud, fraud, and shareholder claims including shareholder derivative claims. In addition, the firm has defended various consumer claims, including individual and class actions for violation of the Fair Debt Collection Practices Act, TCPA, and unfair competition claims. On the casualty side, Coleman & Horowitt attorneys have represented contractors, subcontractors, and material suppliers in the defense of construction defect claims in addition to traditional construction disputes arising out of mechanic s lien, stop notice, and bid disputes. The firm has also represented clients in the 2

3 Recent Developments We are pleased to report the following results for our clients: Darryl J. Horowitt and Paul M. Parvanian obtained several defense verdicts in binding arbitrations initiated by consumers with the American Arbitration Association. In the actions, consumers initiated arbitrations against an automobile dealer and our client, a national bank, claiming violations of the Consumer Legal Remedies Act and Automobile Sales Finance Act in connection with automobiles financed by our client. Several cases went to hearing and, in those cases, the arbitrators found no liability on the part of our client. In several other cases, arbitrators dismissed our client based on pre-hearing motions. Eliot S. Nahigian obtained two favorable tax court rulings. In both actions, our clients were assessed taxes that the taxpayer disputed. A challenge was filed with the tax court, which found in favor of our client, reducing a significant potential tax liability to a few hundred dollars. Darryl J. Horowitt and Sherrie M. Flynn assisted in obtaining a dismissal of a third party claim in a TCPA class action. In the case, the plaintiff used our client s online résumé service in his job search. He included his cell phone number on his résumé and then also authorized the résumé to be posted electronically to various job search websites. One of the job search websites had a subcontractor contact him by cell phone. In response, the plaintiff filed a lawsuit against the job search website claiming a violation of the Telephone Consumer Protection Act. The online job search website then sued our client claiming it was obligated to indemnify and defend the claim because it posted the résumé. After a motion for judgment on the pleadings was granted as to the third party complaint filed against our client, the defendant amended. A motion to dismiss was then filed, which was granted without leave to amend, finding that our client had no liability to the online website. Our office assisted our client s main outside counsel located in Atlanta, Georgia, in the review and revision of motions and pre-trial conferences. Mary E. Krugh was able to convince the County of Fresno to reduce a fine it issued against a local homeowner. In the action, the County assessed a fine. Mary appeared at the Board of Supervisors meeting in order to appeal the decision and was able to convince the Board of Supervisors 3 that the issuance of the fine was improper and the initial decision should be reversed. The supervisors agreed. Keith M. White assisted our client in the resolution of an action for violation of the Americans With Disabilities Act (ADA). In the action, the plaintiffs contended that our client s shopping centers failed to meet ADA requirements. Keith was, however, able to resolve the matter for less than defense costs and work out a reasonable schedule to make repairs to the shopping centers to assure compliance with the ADA. C. Fredrick Meine III obtained a summary judgment in a real estate dispute. In the action, our client, a national banking institution, made a loan for the purchase of an undeveloped parcel of real estate secured by the real estate. When the economy suffered a downturn, the customer refused to pay and Fred sued for breach of the promissory note, which was permitted by the law of the state in which the property was located. The customer defended on the basis that such an action was improper, but Fred convinced the court that an action on the promissory note was permissible and secured a summary judgment for the amount owed to our client. This is one of many similar results that Fred has obtained on recovering on outof-state loans secured by undeveloped real property. Judith M. Sasaki successfully recovered monies due under a distribution agreement. In the matter, Judy represented a production company that distributed a popular film. One of the distributors failed to make the required payment due under the distribution agreement. Judy was able to obtain payment of all amounts due prior to the filing of a lawsuit. Judy regularly represents production companies in the recovery of monies due under distribution agreements as well as other entertainment matters. If you have any questions regarding any of the developments referenced above or have a similar matter you may wish to discuss with us, please contact Maria O Neill at (559) / (800) or by at moneill@ch-law.com. continued on page 4

4 defense of personal injury actions, including automobile accidents, slip and fall, and assault and battery cases. In doing so, the firm has obtained favorable resolutions in pre-trial settlement negotiations, mediations, binding arbitrations, as well as court and jury trials throughout California. If we can be of any assistance to your self-insured company or to your insurance company, please contact Laurence Y. Wong or David J. Weiland at or by at or Recent Developments (continued) Lawrence E. Westerlund assisted our client in the issuance of an ABC license. In the matter, our client sought to open a liquor store in northwest Fresno. A competing liquor store objected to the issuance of the license based on the proximity to other liquor stores in the area. Larry convinced the ABC that a license should be issued. Keith M. White was a guest of the Ray Appleton show on Fresno radio station KMJ 580, one of the most popular talk shows in the Central Valley. Keith discussed the ADA and the surge of ADA lawsuits that have crippled Fresno businesses. Keith also participated in a press conference organized by the Citizens Against Lawsuit Abuse. Mary E. Krugh has been asked to serve on the planning committee for the Young Lawyers Division of the International Society of Primerus Law Firms. David J. Weiland has served as a panelist for the Annual Seminar of the Association of Business Trial Lawyers held in October 2014 in Hawaii. Paul M. Parvanian recently served as a panelist for the National Business Institute to speak on title insurance claims. Practice group focus - Our practice groups We formed Coleman & Horowitt, LLP with the goal of providing a broad range of value driven services to businesses and individuals throughout the state. Since that time, the firm has grown to meet our clients needs. As part of that growth, we have added depth to the firm s practice. To provide more focused attention on our clients needs, the firm has established the following interdisciplinary practice groups: Business Transactions Complex and Business Litigation Real Estate Construction Collections, Bankruptcy and Creditor Rights Professional Liability and Tort Defense Litigation Intellectual Property Entrepreneurial Business Practices Labor and Employment Estate Planning/Tax Law/Probate Appellate Each practice group is headed by an experienced attorney and includes both litigation and transactional attorneys. By focusing our efforts on these areas, we can provide better service to our clients. For more information, see Thank You After 20 years in business, and our growth over the past two years, we realize that we have succeeded where others may have failed because of referrals from you, our friends and clients. We thank you for those referrals. We recognize that no business can grow without referrals. We value the confidence you have placed in us with your business and referrals. We hope you will continue to show us your confidence with future referrals. 4

5 Firm Directory William H. Coleman - Transactions wcoleman@ch-law.com Ext. 110 Sheryl D. Noel - Litigation, Collections, Transactions snoel@ch-law.com Ext. 140 Laurence Y. Wong - Litigation (Los Angeles) lwong@ch-law.com Ext. 201 David J. Weiland - Litigation dweiland@ch-law.com Ext. 106 C. Fredrick Meine III - Litigation fmeine@ch-law.com Ext. 134 Russell W. Reynolds - Litigation / Creditor Rights rreynolds@ch-law.com Ext. 138 Daniel L. Rudnick - Litigation / Transactions drudnick@ch-law.com Jennifer T. Poochigian - Litigation jpoochigian@ch-law.com Sherrie M. Flynn - Litigation / Reg. Patent Attorney sflynn@ch-law.com Ext. 105 Lawrence E. Westerlund - Litigation / Transactions lwesterlund@ch-law.com Ext. 152 Paul M. Parvanian - Litigation pparvanian@ch-law.com Ext. 102 Darryl J. Horowitt - Litigation dhorowitt@ch-law.com Ext. 111 Eliot S. Nahigian - Transactions enahigian@ch-law.com Ext. 129 Judith M. Sasaki - Litigation (Los Angeles) jsasaki@ch-law.com Ext. 202 Gregory J. Norys - Litigation gnorys@ch-law.com Ext. 116 Keith M. White - Litigation kwhite@ch-law.com Ext. 114 Rema M. Koligian - Litigation rkoligian@ch-law.com Ext. 117 Matthew R. Nutting - Transactions mnutting@ch-law.com Ext. 147 John M. Cardot - Transactions jcardot@ch-law.com Mary E. Krugh - Litigation mkrugh@ch-law.com Ext. 117 Gary S. Shuster - Litigation gshuster@ch-law.com Maria O Neill - Firm Administrator moneill@ch-law.com Ext. 104 Coleman & Horowitt, LLP provides legal counsel to the business community in the areas of business, commercial, unfair competition, entertainment, and real estate litigation and transactions, construction litigation, appeals, professional liability and casualty insurance defense, insurance coverage, intellectual property (patents, copyright and trademark registration and enforcement), tax, probate, and estate planning. This newsletter is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters. This publication is not meant to serve as a solicitation of business. To the extent that this may be considered advertising, then it is herewith identified as such.

6 Coleman & Horowitt, LLP provides legal counsel to the business community in the areas of business, commercial, unfair competition, entertainment, and real estate litigation and transactions, construction litigation, appeals, professional liability and casualty insurance defense, insurance coverage, intellectual property (patents, copyright and trademark registration and enforcement), tax, probate, and estate planning. This newsletter is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters. This publication is not meant to serve as a solicitation of business. To the extent that this may be considered advertising, then it is herewith identified as such. 499 West Shaw Ave., #116 Fresno, CA Forwarding & Address Service Requested