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Young woman wearing face mask in the street.

Face Coverings – The Subject Of New Lawsuits Across the United States

DISCLOSURE

Take into account that San Diego County is not subject to out-of-state laws and court decisions. This following article deals with face masks in Dallas, Texas. Nevertheless, this is shared for the purpose of posting what new disputes are arising in connection to COVID-19 matters, namely face mask wearing policies. If such lawsuits develop in California, it can be expected for judges to use these out-of-state issues for guidance.  It is also posted to help employers understand what liabilities can result from face covering policies and procedures within business operations.

JANE DOE v. HILLSTONE RESTAURANT GROUP

In the State of Texas, the state has not mandated face-coverings for restaurant workers. Some cities within the state have enacted face-covering mandates. Hillstone Restaurant Group employs Jane Doe. Jane Doe wished to work while wearing a face mask. However, her employer disapproved of such measure and in response did not schedule her for work. That became company policy. Jane Doe filed a petition to dispute the company’s policy forbidding wearing masks while at work. A Texas judge issued an order requiring Hillstone to allow employees to wear masks. Such an order was in effect for 14 days. This 14-day order served as a temporary restraining order allowing Jane Doe to work while she seeks out a more permanent solution, or more permanent legal claim as needed if the employer elects to refer back to its policy.

Seeing what is occurring on the legal front across the nation, employers in San Diego County are recommended to avoid legal claims by not refusing an employee to wear a face covering while at work. Seek out local orders (city, county, and state) to see the latest requirements and mandates for businesses actively open to the public.

CDC RECOMMENDATIONS REGARDING FACE COVERINGS

It is also recommended to seek out CDC guidance concerning the subject matter.  As of the date of this publication, the CDC currently states on their website:

  • “CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.”
  • “The CDC is additionally advising the use of simple cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others.”
  • Link

READ MORE

 

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5 Steps to Safely Re-Open Your Business in San Diego County Amid COVID-19

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. A pandemic is defined as a global spread of a new disease often applied when viruses are able to infect people easily and spread from person to person in an efficient and sustained way. On March 19, 2020, an executive order and public health order directed all Californians to stay home except to go to an essential job or shop for essential needs to disrupt the spread of COVID-19 among the population. However, not all businesses came to a halt. Essential services were still in operation and the State of California published some guidance on how to maintain those operations open. Over time in the months of April and May, 2020, the State has continued its publication of industry guidance offering recommendations on how to best re-open amid COVID-19.

If your business is in the process of re-opening or recently re-opened, use the next 5-steps as guidance and a minimum criteria for adhering to State, county, and city (or incorporate area) imposed measures.

1. Review the State’s Resilience Roadmap. Confirm that the State is re-opening your industry. As of May 27, 2020, the following sectors, businesses, establishments, or activities are not permitted to operate in the State of California at this time:

  • Personal services such as nail salons, tattoo parlors, gyms and fitness studios
  • Indoor museums, kids museums, gallery spaces, zoos and libraries
  • Community centers, including public pools, playgrounds, and picnic areas
  • Entertainment venues, such as movie theaters, gaming, gambling, arcade venues, pro sports,
  • Hospitality services, such as bars, wineries, tasting rooms and lounges
  • Nightclubs
  • Concert venues
  • Live audience sports
  • Festivals
  • Theme parks
  • Hotels/lodging for leisure and tourism – non-essential travel
  • Higher Education

2. Review State-Published Materials to Help Reduce Risk. Begin implementing your own company measures.

“Before reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

It is critical that employees needing to self-isolate because of COVID-19 are encouraged to stay at home, with sick leave policies to support that, to prevent further infection in your workplace. See additional information on government programs supporting sick leave and worker’s compensation for COVID-19.”

3. Revisit A Few Industry-Specific Measures.  The State of California has issued guidance on how to safely re-open your business. Be mindful of the publication dates. Updates may be available since publishing this information. Note that some of these publications are only guidelines intended to provide recommended practices to best help reduce the exposure and infection of COVID-19.

4. Turn to Industry-Based Guidance and Publications. Associations, coalitions, and other industry-specific group exist for the purpose of providing guidance on how safely re-open your business when the State of California permits.

5. Seek Out Professional Advice As Needed. This includes turning to your attorneys, insurance agents, financial advisors, business consultants, human resource outsourced consultants, accountants, bookkeepers, your networks and so on to get your affairs in order and be in the know. Each office has spent the last few months brushing up on how COVID-19 will impact your business from their respective professional background. Now is the time to revisit your network.

NOTE: This is only a suggested series of steps to take. Actual opening measures will vary depending on your business and the many variables involved in operating in California. Be sure to comply with local and state measures as they become published in the following months.

 

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Business Law: Companies/Employers Using COVID-19 Liability Waivers

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. A pandemic is defined as a global spread of a new disease often applied when viruses are able to infect people easily and spread from person to person in an efficient and sustained way. On March 19, 2020, an executive order and public health order directed all Californians to stay home except to go to an essential job or shop for essential needs to disrupt the spread of COVID-19 among the population. On May 20, 2020, the County of San Diego developed guidelines for businesses such as restaurants and retail businesses to open safely to have customers in the premises with restrictions. On May 24, 2020, the State Board of Barbering and Cosmetology developed guidelines for hair salons to open safely.  This all means that as of late May, 2020, businesses are starting to re-open, of course, with safety measures required. It is expected for larger organizations and theme parks open in late June 2020 or early July 2020.

Waivers

With employees returning to work, businesses are looking to limit liability related to COVID-19 exposures. A few calls and questions I have received include:

  • Can I issue COVID-19 liability waivers for employees to sign?
  • If an employee refuses to sign a COVID-19 liability waiver, must I still let them work?
  • Can I ask customers/clients to sign COVID-19 liability waivers before entering my business?
  • Are COVID-19 liability waivers enforceable?
  • What can I include as part of my COVID-19 liability waiver?

Generally speaking, liability wavers are permitted but enforceability depends on its contents and what exactly an employer is trying to limit liability from. There are certain risks, hazards, and employee rights that an employer cannot lawfully shield themselves from. For the latter part of the sentence, think worker’s compensation rights and other statutory rights afforded to California employees. Look out for specific executive orders passed in March, April, May, June 2020.

Enforceability of such waivers have not yet been tested through the court system and it is not yet known if courts will limit what an employer can include in such waiver.

Even with signed waivers, employers need to focus primarily on implementing safety and security measures imposed at the city, county, and state level. These include at minimum: (i) physical distancing, (ii) use of face coverings by workers and customers, (iii) frequent handwashing and regular cleaning and disinfection, and (iv) training workers on these and other elements of the COVID-19 prevention plan.

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Amid COVID-19, Are Estate Planning Matters Moving Forward?

As COVID-19 unleashed a health crisis on an international scale, an economic crisis has also occurred and has impacted every single Californian/American. While COVID-19’s stay-at-home orders and social distancing requirements are still in place in Southern California, questions concerning legal matters have continued well through March, April, and May, 2020. These are some of the most frequently asked questions:

Question: Are estate planning matters moving forward?

Answer: Yes, they most certainly are. As people always say, the one thing we all have for certain is that at some point we all die. For some it is certainly not a fun topic to think about. For others, having their affairs in order is certainly exciting. Count me in the second group. As COVID-19 started, plenty of inquiries were handled asking for either self-help options or assistance in preparing documents. Here are a few issues and matters that have come across our desks the last few months:

  • I’d like to create a simple Will
  • My financial advisor tells me I need to create a Trust. How does that work?
  • COVID-19 has made me think about establishing plans for myself, my spouse, and my children. My children have their own children now. Is this something I can plan?
  • I have a few retirement accounts that need attention. How does your office help with that? Does it?
  • What plans can I make now so that my minor child is cared for should anything happen to me?
  • Mom passed away and we cannot find her Will. What can we do?
  • I live out-of-state and a family member died in San Diego County. Can you help with Probate there?
  • We know dad had a parcel of land out-of-state. He passed and we want to know what happens to that land.
  • I’m currently hospitalized with only a few months to live. Can you help prepare my last wishes for me?
  • My soon-to-be ex-spouse and I own a property together and have a child together. I’ll be initiating a divorce and want to know what happens to our Trust, our property, and our child.
  • I’d like to leave behind a DNR (do not resuscitate). Can you help with that?
  • I’m out of the country and wish for my son to complete the sale of one of my properties there. Can you help?
  • Probate matters in San Diego Court are temporarily on hold, but we need to start a Probate. Can that still happen?
  • My parents left behind a Trust where I was nominated a Successor Trustee (future administrator). Can I start without making a court appearance? Can I start with all the limitations of COVID-19?
  • Under the terms of my parents’ trust they instructed to sell the house and divvy the proceeds between myself and siblings. Can I still sell in spite of COVID-19? Is now the best time to sell or should I wait?
  • My parents are older. They’re safe now and following social distancing measures, but they’d like to discuss updating their Wills. They speak Spanish. Can you help?
  • A few years ago I used a self-help site to create my own Will. Can you review that and confirm everything looks good?

Clearly these are paraphrased but this is a brief, incomplete list of the legal inquiries that have come through this law firm amid COVID-19. For some persons and couples, they may have already had their affairs in order. For others, brand new issues developed during COVID-19 requiring immediate attention.  If you need help with estate planning matters, probate matters, or trust administration matters, call in and let’s determine how this office can help.

 

 

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Free Help With Developing Your Business @ Small Business Development Center

This past week I had a chance to learn about the South San Diego Small Business Development Center from one of their business advisors. As an attorney practicing in business law, I assist a number of clients with legal matters or legal disputes concerning their business. But often small business entrepreneurs need assistance with non-legal matters and do not know where to turn to. I recommend learning more about the Small Business Development Centers of San Diego. They offer assistance for FREE in the following topics:

  • Accounting / Quickbooks
  • Marketing / Public Relations
  • Business Plan Assistance
  • Growth & Expansion Strategies
  • Sales & Customer Service
  • Financial Analysis / Cash Flow Management
  • Business Structure / Formation
  • Merchandising
  • E-commerce & Online Sales

Learn more on the SBDC website.

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Selling Arts & Crafts Depicting Famous Faces & Characters. Can You Do It?

With Comic-Con International 2016 right around the corner (July 20-24 including preview night) in San Diego, I am sharing a question that comes up quite often in my practice in Business and Intellectual Property Law. The question, often involving famous comic characters and celebrities, goes something like this –

Q: I created an art piece for my grandson that contains a famous cartoon character on it. Can I sell these to others since I made them? I am interested in selling them online in marketplaces like eBay and Etsy for profit.

The question also involves artwork and crafts including celebrities, sports athletes, and other famous characters. Without knowing it, the asking party just asked a very complicated question as this simple inquiry triggers various area of the law including:

  • copyright law
  • business law
  • first amendment rights (under certain circumstances)
  • privacy laws (under certain circumstances)
  • publicity rights (under certain circumstances)
  • cyberspace laws
  • and more

This simple question requires plenty of legal analysis to fully provide an answer and a recommendation. However, for the sake of brevity, it is generally unlawful to use the image of a famous cartoon character to generate your own products for commercial sale. But let’s consider things further.

Let’s assume that the drawing is such a success with your grandson that you decide you’re going to use it for use with your online store in a well-known marketplace and will also use it for marketing purposes for your business. Upon using the image for commercial purposes, you’re exposing yourself to liability for unlawfully using a person’s liking or a person’s copyrighted work without permission. If you make 1 single sale in a private setting, you open yourself for exposure. However, from a practical perspective, it’s very unlikely that the Marvel brand or large company will pursue a claim. On the other hand, if you wind up being the next big thing on the market thanks to the you should expect a lawsuit for damages. Other things to consider are how you’re using the work, whether you transformed the image in any way, and many other factors.

If you have a similar question like the one above you should speak with an intellectual property attorney before proceeding to fully analyze your question and determine whether to move forward with your plans. Factors analyzed include:

  • what image are you using?
  • is the work protected y copyright registration?
  • did you ask for permission from the creator?
  • if the work involves a person, does the person know about your use?
  • where did you get your image from?
  • did you copy the image or transform it in any way?
  • what are you using it for?
  • are you engaging in private sales or commercial sales?
  • other questions depending upon your circumstances

Note that this type of question is complex and requires serious factual analysis.

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Celebrate Mother’s Day With the Kids (Sunday, May 8th) & Then Set Time Aside Time to Make Arrangements for the Children

As families prepare to celebrate Mom this Mother’s Day on Sunday, May 8th, children and significant others prepare to make this 1 day extra special for her. This day usually showers Mom with flowers, a dining experience, gifts and other memorable moments for the whole family to remember. The point of this day is for Mom’s to feel extra special, but Mom’s can also take this day as a reminder of things to arrange for their family’s future.

Regardless of whether you have been a Mom for 1 year or 21 years, you and your children will feel even more love between yourselves when you let them know that you have planned for their future with estate planning arrangements. Estate planning arrangements offer answers to the following questions:

  1. Who will care for the kids in Mom’s long term absence or death?
  2. Will the kids be left under the parental guidance of their natural father upon Mom’s death?
  3. Are there any savings accounts reserved for supporting the kids upon Mom’s hospitalization, incapacity or death?
  4. Are there any life insurance policies Mom set up?
  5. Who will handle the children’s financial, healthcare and educational future if Mom cannot do it?
  6. If Mom passes away, what items (including houses) do the children split and when?
  7. If Mom owns a business and suffers an accident, who carries on the business?

Estate planning answers many other questions that are dependent upon the family structure. This is even more important where there are circumstances involving adopted children, step children, blended families, disputes among family members and so on.

Therefore, enjoy Mother’s Day this coming Sunday. Hug your children like never before on this day and then focus on how you can show them your love even more through estate planning.  Calendar a reminder to yourself as a Mom to plan for your children’s future through Wills, Trusts, Financial Planning and other methods.

 

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5 Great Ways to Find the Best Business Attorneys in San Diego

When your San Diego-based business faces legal matters, finding immediate legal representation can become a daunting task. There are so many attorneys out there advertising both offline and online claiming experience in business law or business disputes. So how do you find qualified and experienced business attorneys in San Diego? Here are a few pointers to consider when you are searching for the best business attorneys in San Diego to take on your legal matter.

  1. Request Recommendations from Your Friends and Family – start off by inquiring within your network. Ask your friends and family members for recommendations. You’ll learn about how others have used a business attorney in the past and what to expect in involving a business attorney.  Friends and family will look out for you and will recommend only those that provide quality service.
  2. Read Available Reviews – After receiving recommendations, search their online profiles. Read available reviews to learn how other non-family members have been helped by these particular attorneys. Use local San Diego resources such as community-based sites or your local Chamber of Commerce, and national resources such as Avvo.com, Justia.com, Yelp.com, FindLaw.com. You can also simply perform a Google search for the attorney’s name to learn more about that person and/or law firm.
  3. Industry Recommendations – Use available resources such as the San Diego County Bar or the State Bar of California to learn more about your potential attorney. Search online and call around with inquiries as well.  Again, sites like Avvo.com (a legal database of attorney) will help shed more light on your search.  Here’s an example of an attorney’s profile on Avvo.com
  4. Referral Requests from Trusted Parties – Use trusted professionals to seek out recommendations.  For example, if you have worked with a Realtor in the past, that Realtor is typically part of a group of professionals and just may know a great attorney to refer you to. It also gives you a great opportunity to follow up with your group of trusted professionals.
  5. Consultations – When seeking legal consultations, attorneys in San Diego often offer free consultations depending on your particular legal problem and need. Take advantage of those free consultations and request more than 1, especially if you really want to obtain a second opinion.  In attending at least 2 consultations, you just may find that 1 attorney fully understands you or is simply a better fit for you than the other.

These recommendations are based on an accumulation of feedback from clients over time. Most expressed that taking their time to find a quality attorney is more cost-effective in the long-run than simply electing the first search result using an online search engine. I hope this helps you locate the best business attorneys in San Diego.  Feel free to reach out to this office to request a consultation after reviewing our client feedback.

Your business is important. Be sure to take the time to locate the representation that’s right for you, your team and the business.

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Points to consider before and after registering a business name or domain name

When a person or set persons start a new business venture, it is an exciting time when you just want to get to work already. I call this the “honeymoon stage” of business. Everyone is collaborating well, ideas are flowing smoothly and depending on your personality, you either start the work immediately because you are motivated and eager, or you take a step back to analyze and consider what needs to get done first.  It is all a happy period of time where you can’t wait to move forward and grow. No one likes to consider the bad stuff that may come about later such as legal problems. Be wise, be that person that does consider such issues to prevent them.

If you have not yet started your business, take a peek at the following recommended points to brainstorm and consider before and after choosing a business name and registering a domain name. If you have started your business and are already growing it, take a moment and review some points that still require your consideration.  These points usually stir up legal problems between businesses at some point in their life cycles if not considered properly.

1. Business Plan. Business plans are roadmaps for a successful business. It generally outlines the route a company needs to take to grow its revenues and profits. If you have time, develop a business plan – even if it is simple – so that you have a living document to refer to.  As you carry on your business, the plans may change, but that is somewhat expected. These are helpful to keep you grounded and focused on your goals. It also serves as a great tool to measure performance per quarter or year.

2. Business Entity.  Consider whether you are going to operate as a sole proprietor or a corporation/LLC. Each one of these options offers different liability shelters and tax benefits that are worth exploring.  Besides performing general online searches about these topics, you best help yourself by seeking a consultation with a business attorney to really help you understand how each option would fit you. Sole proprietorship, corporations, and limited liability companies (LLC’s) are used for different business needs. Analyze your immediate and long-term needs under each business type.  Business entity planning is of even greater importance when dealing with 2 or more business partners. More often then not, partnership issues develop – even with family-owned businesses – where improper planning and document preparation was not in place. Review Buy-Sell Agreements, Shareholder Agreements, and other similar options available to adequately establish your 2+ person business relationships.

3. Business Names. Business names are fun to develop. A business can be named just about whatever it is you want and can be as creative or simple as you desire. However, note that you do not find two companies called “Coca-Cola” or “Pepsi Cola” for a reason. Trademark protections, copyright protections, domain name protections, and state laws exist to limit what you can name our business. As a basic example, if you want to be the next big App developer, you know your space is in the computer and information technology field. You won’t want to use a business name and slogan that is already in commercial use in that same technology field because if you do, it will be a matter of a trademark infringement lawsuit coming your way. Therefore, when doing something as simple as selecting a business name, be sure to perform your due diligence and determine whether anyone else is using that same name at a City, County, State, and Federal level.  Also determine whether they’re using the exact or similar name in your industry.

4. Domain Name Registrations. Before registering for a domain name, perform your due diligence in this step as well by looking for other domains and businesses (both domestically and internationally) already registered. Under business laws, trademark laws, and copyright laws, certain domain names may infringe on an existing business’s rights the minute the domain name becomes registered.  Avoid a trademark infringement claim when choosing a domain name. As a simplified explanation of the standard, if the new domain name causes confusion to the public between the new domain and an existing domain, it is likely an infringing domain. To avoid infringement issues, search the United States Patent & Trademark Office’s website for registered marks, potentially conflicting marks and marks which can cause general confusion.

5. Online Presence. Nowadays, a website acts like an interactive business card. A business website permits the business owner to share information about the business with the world. However, a business owner ought to be cautious with what they publish online and how. To continue with our previous example, if you are the next big App developer developing a gaming app to be marketed towards the public of ages 13+, be aware that there are state and federal laws that require businesses to disclose certain information. For example, a majority of the websites online (especially those for commercial purposes) publish a Privacy Policy, Terms of Service and Statement of Use. Each one is carefully drafted to include the necessary disclosures required of their industry. If you operate a business website and have reason to believe it is used and viewed by minors, you should know about certain regulations applicable to this group such as COPPA, or the Children’s Online Privacy Protection Act. There are a great number of other online regulations that exist. Your use and requirements to address these regulations all depend upon your industry, target market, business practices, state of business formation, and other variables.  Lack of knowledge about these regulations is not an excuse.

6. Online Agreements. Do you know the difference between “browser wrap” and “click wrap?” These are two ways in which an online website visitor agrees to an agreement on your website.

7. Monitoring and Enforcement. Once you register your business name and/or trademark name you then have to monitor for infringement. Unless you enforce your rights to your business name and domain, you may wind up diluting the value of your business and losing your rights.

The above summarizes some points to review before and after moving forward with a new business. However, there are many other points to consider both during and after these stages. A lot of points are purely based on the type of business you plan. Business attorneys experienced in helping sole proprietors and business partners in different industries can be beneficial to you. Consider a consultation for representation with these initial matters. Business attorneys can also help you in the long run with various business transactions. See more and request a consultation.

 

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See you at “Business Law Day” hosted by the San Diego Public Library

The San Diego Public Library is offering a “Business Law Day” on Tuesday, November 10, 2015 from 2:30pm-6:30pm.  At this special event, attorneys will be present to offer advice to prospective and current business owners in the areas of business law such as patents and intellectual property.

Speak one-on-one with an attorney in a 15-20 minute free consultation session. Attorney Ruth Ryan-Cruz has volunteered her time for this event and plans to offer advice at this event.

If you’re thinking about opening up a business  in San Diego County or perhaps you are in the process of doing so, we welcome you to attend this free event. This invitation is also extended to current business owners regardless of which stage your business is in. This event is open to the general public.

Event Information:
Date: Tuesday, November 10, 2015
Time: 2:30pm-6:30pm
Address: Central Library / Special Events – 9th Floor 330 Park Blvd., San Diego, CA 92101
More information: SDPL & Other events

Share this information with your friends and family. They may need a free 15-20 minute consultation about their business plans.