Small Widget Spot

November 17, 2017

Are Price Hikes Allowed When there is a state of emergency?

Are Price Hikes Allowed When there is a state of emergency?

Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLP

The short answer is no.  When the President of the United States declares a state of National Emergency, Penal Code Section 396 prohibits raising the price of many consumer goods and services by more than 10% after an emergency has been declared.  This applies not only to rents, but also to goods and services.

Penal Code Section 396 applies for 30 days after an emergency and 180 days for reconstruction services and emergency cleanup services.  This period can be extended beyond these time frames by state legislature and local officials.

The statute applies to protect the pricing of the following major necessities: rental housing, hotels/motels, food and drink, emergency supplies such as water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, hammers and medical supplies, including but not limited to medications.

The law applies to neighboring counties as well and applies to all providers of the goods or services unless they can prove that the price increase is due to increased labor or material prices.

WHAT SHOULD I DO IF MY LANDLORD INCREASED MY RENT ABOVE 10% AFTER THE NORTHERN CALIFORNIA FIRES?

If your landlord increased your rent above 10% in the 30 days after the Northern California Fires were declared a National Emergency (October 16, 2017), then call the offices of Kornblum, Cochran, Erickson & Harbison, LLP.  Violation of the price gouging statute are subject to civil enforcement actions including civil penalties of up to j$5,000 per violation, injunctive relief and mandatory restitution.  In addition to these penalties, if there is a pattern and practice of a particular landlord increasing rents after the emergency, consumers are protected by the Business and Professions Code (Section 17200 et. seq.) as well.

Posted in: Uncategorized
November 17, 2017

Identity Theft – How can it affect me?

Identity Theft – How can it affect me?

Rachel Erickson

Due to the fires in Northern California, we are seeing an upsurge in identity theft. You need to be aware of how to spot it, what to do about it now, and how to document what you’ve done to protect yourself in the future.

Imagine this – In two years’ time, you are told that you OWE FEMA $34,000 for a small business loan that you took out in the fall of 2017. You are REQUIRED to pay this back. But wait, you say. I never applied for a loan at all!

Identity thieves will use your address and possibly your Social Security Number and Date of Birth to obtain a Small Business Loan (SBL) from the government, then take the money and default on the loan leaving you holding the bag.

WHAT WE ARE SEEING NOW.

FEMA is sending out letters to potential ID theft victims stating that their identities may be compromised. They suggest a number for victims to call to report the potential theft, but this is far from enough to protect your interest.

WHAT SHOULD I DO IF I SUSPECT THAT I AM A VICTIM OF IDENTITY THEFT?

Below is a checklist for what you should do to protect yourself in the event that someone takes out a FEMA loan in your name or if anyone attempts to use your identity to take out a fraudulent loan. Start with a communication log. This is EXTREMELY IMPORTANT. If an agency is going to come after you for an outstanding loan (that you never applied for), you need to show that you were diligent and thorough in protecting your interest, which necessarily protects theirs.

CHECKLIST

Create a binder or folder – create a binder or folder that contains EVERYTHING relating to the potential identity theft. If FEMA sent you a letter alerting you to the potential theft, make several copies and keep one in your binder.

Communication log – keep track of every single communication you have relating to the identity theft. This includes phone calls, emails, web research and in-person communications and letters. Keep this as the front page of your binder. Example of a communication log is below.

Police report – file a police report with local police or Sheriff’s department. They may be surprised or not aware of how big a problem this is currently, so make sure they are aware. Keep a copy of the report in your binder and make a few other copies in case you need them. Make sure to put this in your communication log.

Contact your bank(s) and give them a copy of the letter from FEMA if you have one. Alert them to the potential for ID theft/fraud. Put a temporary freeze on any accounts you don’t use often. If you are really concerned about theft of your bank account, create a new one and close out the compromised one.

Contact your credit card companies and alert them to the possibility of ID theft so they can go on high alert for unusual charges. Make sure they know you are a victim of the Northern CA fires and that you may have unusual charges if your home has burned down, but let them know where you are. When you get credit card statements, look through them to spot unusual or unauthorized charges and bring them to the attention of the credit card company. Put a freeze on, or cancel, any cards you are not using.

Contact the Federal Trade Commission at www.consumer.ftc.gov. They will take your information and help you put together a plan to recover from identity theft.

Contact the Social Security Administration. The wait at local offices is usually astronomical, so consider going online. Report misuse of your SSN. If the theft is bad enough, you may need a new social security number. Go to www.ssa.gov.

Check your credit report. If you get debt collectors trying to collect a debt that is not yours, this is where your binder comes in handy. Give them copies of the FEMA letter, if you have one, your communication log, the police report, proof of freezes on your accounts and anything else you have collected on the way that may be helpful. You will need to write a letter to the debt collection agency within 30 days, explaining that you are a victim of identity theft and that the debt is not yours.

Keep copies of every letter that you receive or send and put them in your binder.

DATE NAME OF AGENCY NAME OF PERSON CONTACT INFO NATURE OF COMMUNICATION
11/13/17 Bank of Who’s Got Your $$ Jenny Lottadough (800) HELPMEE

(800) 435-7633

Close checking, open new account. Freeze on savings account. Was told to send a copy of FEMA letter to her supervisor, Joe Noname
11/16/17 SR police dept Officer Canihelpyoumaam SR police dept

(address)

In person, filed police report and attached copy of FEMA letter.

 

Rachael Erickson
Kornblum, Cochran, Erickson & Harbison, LLP

Rachael Erickson is an experienced Civil Litigator and Family Law attorney in Santa Rosa, California. With 16 years of experience and four years as managing partner of the Santa Rosa Office, Rachael offers personalized strategic advice and strong legal skills to assist each client with their specialized legal matter.

Posted in: Uncategorized
November 17, 2017

Preparing to be Effective at Mediation: Stating the Obvious But the Obvious Needs to Be Restated!

Preparing to be Effective at Mediation:  Stating the Obvious But the Obvious Needs to Be Restated!

Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLPOne of my biggest complaints is that some lawyers (and perhaps clients) just do not get it—that it takes considerable effort and preparation to make the mediation process work. It takes:

  • A common and good faith interest in mediation,
  • An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date,
  • The presence of those with authority to settle (with real authority please!), and
  • A level of candor and disclosure that allows the parties top assess realistically assess the other side’s position.
  • And perhaps more than anything, a willingness to listen to what the other side has to say, along with carefully assessing the position counter to the client’s.

If this is done—and it should be if counsel’s representation in mediation is to meet professional standards—then there will be a full discussion and exchange of information before and during the mediation so that the chances of settlement increase.At that time, it seemed to me that mediation had a distinct advantage because it a) brought all parties together face to face, b) involved a neutral who could be a facilitator and an evaluator, if needed, c) was a fixed process for negotiations rather than a haphazard effort to try to settle a case directly, and d) would involve principals or persons who were present who had a direct interest in resolution (e.g. the parties, their appointed representatives or their insurers).What I am hearing now, however, is that mediation is not always the preference and some are finding mediation is not preferred. In part it is because of the cost and in some cases, because one side or the other does not take the process seriously and is not prepared. Except with ADR programs sponsored by a court system, which are at no cost to the parties, mediations are pricey in many cases. Sure, big cases with multiple parties with a lot at stake might be desirable because the costs can be shared and the mediator is needed to isolate on the moving parts and get a global deal done.So, how do we ensure that the mediation process will work in the average mid level lawsuit? Here I elaborate on the bullet points from above:

  1. There has to be a good faith interest in resolution. If there is not, politely decline. If the court directs the parties to mediate, then be honest if a party just wants a trial. But if you attend you must have a real interest in settlement.

One of the important items I have on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I may ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome, if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.

  1. The “check writer” and decision maker must be present. I insist that this be the case or I will not attend. I ask the mediator to confirm this. I fail to appreciate how a mediation can be effective and there be good communication if this is not the case. And, the last thing I want to hear is that the key person, who was standing by the phone (!) left work at 5 p.m. Eastern Time, when I am in a mediation on the West Coast where it is only 2 p.m..
  2. The parties need to be prepared to lay out their case in full in a statement that is exchanged.. How can a mediation be effective if one side conceals its position from the other side? There can be no dialogue if this does not happen. Two page briefs from a party, or mediation statements I never see, allow me to just call off the mediation
  3. The mediation statements must be submitted well in advance of the mediation. It is really galling to get them a day or two before the mediation.

My rule is that I send the mediation briefs out to counsel and the mediator (email and/or hard copies) two weeks beforehand. Because I am usually representing a plaintiff, I need to be sure to get the mediation statement with my demand in time for the defendant(s) to evaluate my client’s position. And it needs to be complete, a “mini” claims file with all supporting documentation. Last minute submissions of additional specials, and thousands of dollars of additional medical bills — does not allow a defendant to review all the relevant information and seek authority so that settlement can be fully explored at the mediation. That won’t happen if the statement is submitted 5 days before the mediation is to take place. Late and incomplete submissions understandably puts a defendant in a bind in its efforts to settle, and only delays the process. Also, if you email the mediation statement to opposing counsel, then it is easy to forward them on to a client or insurance carrier.

From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and reports obtained. That has to be done well in advance of the mediation date. This is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process. Plaintiff should serve a mediation statement at least two weeks ahead of the mediation date. More time is even better. Anything less than this is likely to result in a wasted day.

  1. The client needs to be prepared to make decisions before the mediation day. On the plaintiff’s side, spend a few hours going over the details of the case, the cost of going forward, and the dollars and cents involved if it progresses further or is tried. What is the likely outcome and how much will it cost? Use the statistics of what happens if the parties walk away; what are the chances of a better result [2]. Look at the economics of going forward and consider the present or time value of money from the plaintiff’s side. What is the value of having cash now versus the “hope” of more cash later?

Be prepared to be an active participant in the process: Be professional, meet and greet the other side and make sure all attending have met you and your client and exchanged greetings. There is no reason to be angry, hostile, or defensive. Just be a good participant in the negotiation process and see if you can get the job done – closure for you and your client.

Guy O. Kornblum, KCEH Law
Guy O. Kornblum

 

[1] Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbison, LLP, with offices in San Francisco and Santa Rosa, California. He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys. Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow. He is a “Top 100” Trial Lawyer, and is a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Third Edition released for 2015-16. He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure. You can order his latest book at: http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/Negotiating-and-Settling-Tort-Cases-Reaching-the-Settlement-2015-ed/p/100252838; See also the review of his book: http://litigationcommentary.org/Miscellaneous/guy-o-kornblum-book-review.html. His firm’s website is www.kcehlaw.com. Mr. Kornblum is a strong advocate for mediating his client’s cases before going to trial or arbitration.

 

[2] See G. Kornblum, “Research Confirms Negotiated Results Superior to Going to Trial,” San Francisco Attorney (San Francisco Bar Association, Spring 2009), which discusses the study by Dr. Randal Kaiser of Decision Set in Palo Alto, California, and which compares from both the plaintiff and defense side the statistical chances of doing better that what a settlement presents.

 

Posted in: Uncategorized
October 16, 2017

Making Your Insurance Claim After the NorCal Fires

Making Your Insurance Claim After the NorCal Fires, KCEH Law, Kornblum, Cochran, Erickson, Harbison

Some Basics

Those who suffered property losses in the Northern California wildfires are no doubt looking to insurance coverage to restore the damaged property.  Most of us never look at our insurance policies until we have a loss and claim.  That means there may be some surprises as to what you have or do not have in terms of coverage.  Here are some thoughts:

  1. Notify the Insurance Company: Call the Agent (company representative), Broker (your representative), or claims contact (toll free number directly to the company) to give notice of your claim.  There will be thousands of claims and you need to get at the front of the line.
  2. More on Whom to Contact: If you have an Agent or Broker, call them. If you purchased the coverage directly from the company (USAA, GEICO, Progressive), use the toll free number which you can get on the internet at the insurance company website – there may be a special number for the California wildfires.
  3. Make Sure You Have a Complete Copy of Your Policy:  Make sure you get all of the information about your coverage. If you have lost the policy and other communications with your insurance company, the company representative, its Agent, or your Broker can help provide a copy of your policy.
  4. What Your Policy Should Include: You need a complete copy of your policy:  the declarations (i.e., summary) page, general insuring provisions (i.e., what is covered), exclusions (i.e., what is not covered), conditions (what you need to do to start the process, e.g., make a claim) and endorsements (changes to the basic coverage provisions).  Go over this with the insurance company contact to make sure you have it all.
  5. Look at the Declarations Page: Review the declarations as it provides an overview of the coverage you have — what is covered by topic and how much is allowed for this coverage (known as the “limits” of coverage).
  6. Your Homeowners Policy: If you own a home, your homeowners policy should provide coverage for replacing the structure and the contents that are destroyed or damaged, subject to the limits in the policy.  If you have “inflation coverage,” your limits may have increased by a modest percentage because of inflation, but you must have that coverage in your policy to enjoy its benefits.
  7. More on Your Homeowners Policy:  There is insurance for other than the damage or loss of your home. For example, you likely have coverage for your additional living expense required by having to live elsewhere either temporarily or more long term while your home is restored.
  8. Renters Coverage: If you are a renter, you may have a tenants policy, which will cover your damaged or destroyed personal property at your rented premises, such as clothing, furnishings, personal belongings, and phones and computers (but beware of the limits of this coverage).
  9. Coverage for Your Damaged Vehicles: If you have a vehicle that was damaged or destroyed, your auto policy likely covers this loss under what is called “comprehensive” coverage. This is different from “collision” coverage for when your vehicle is damaged in an accident. With comprehensive coverage, your insurance company pays for damage to your auto caused by an event other than a collision, such as fire, theft or vandalism.  Your vehicle may have been damaged from the fire, or items in the vehicle may have been stolen from looting afterwards.  Comprehensive coverage will provide reimbursement for the loss up to the limits of coverage.
  10. Cooperate With Your Insurance Company:  Insurance policies require cooperation with the insurance company in providing information about your claim.  The insurance company has a duty to act “in good faith” in handling your claim, without delay, and with an obligation to treat you “fairly” in the process. If you suspect that the insurance company is not handling your claim in this manner, then seek the advice of a knowledgeable lawyer experienced in dealing with insurance claims.

         For more information see, www.kcehlaw.com, or contact Guy Kornblum at gkornblum@kcehlaw.com or 415-440-7800 x2.