• Posts by Shawn Ogle
    Posts by Shawn Ogle
    Partner

    Shawn Ogle is a seasoned litigator in the firm’s Commercial and Complex Litigation Practice Group with a proven history in a broad range of commercial, class action defense, and high-profile trust & estate matters.  Mr. Ogle prides ...

In VFLA Eventco, LLC v. William Morris Endeavor Entertainment, LLC, the California Court of Appeal recently affirmed the importance of drafting a contract with a clear understanding of every word and clause, and the effect each has on the contract as a whole.

Categories: Business, Litigation
Court of Appeal Places Stricter Requirements on Employee E-Mail Access Policies

In modern business, nearly every employee and executive has access to, and uses a computer on a regular basis.  In line with this, employers expect that work computers will be used solely for work, and that work e-mail accounts are property of the employer, not the individual employee or officer.  However, a recent decision by the California Court of Appeal found that something more is required:  without a clear policy in place prohibiting the use of an employer’s e-mail accounts for personal purposes and informing employees that their work e-mail accounts are subject to review, an employer may be prohibited from doing so, and evidence collected in that manner may be inadmissible if a dispute arises.  What’s more, your lawyer may be prevented from representing you in any disputes with the employee whose e-mail account you accessed if these proper protections are not in place.

Tags: email

Since its passage in 1990, the Americans with Disabilities Act (ADA) has required “places of public accommodation” to make modifications to promote accessibility for disabled persons.  But what about websites?  We previously discussed the practical and legal complications of the ADA and California’s corresponding Unruh Civil Rights Act with an earlier post here.  Although they can be accessed by the public, a website is not a physical location, even though it may sell physical goods and services.  This question has split Federal Courts of Appeal for years.  Some have held that websites only exist in cyberspace and therefore are not “places” governed by the ADA.  Others have held that a website does qualify as a “place,” so long as it is advertising goods and services provided at a specific physical facility.  The California Court of Appeal had not addressed this issue or its implications for the Unruh Act.

Reliance on Third-Party Agents Can Expose You to Substantial Liability

Paperwork is an inevitable and often tedious part of doing business.  When that paperwork becomes routine and time consuming, the natural inclination is to skim documents or rely on industry-developed shortcuts.  While this can save you time in the short-term, doing this risks exposing you and your company to massive liability. And while you can directly control your own actions, the risk of liability does not end there.  Many companies choose to outsource that paperwork to third-parties and trust them to do their jobs. But even when you have good practices internally, when the third parties that work for you do not follow best practices, you can still be put at risk.  The recent California Court of Appeals decision in Bergstrom v. Zions Bancorporation is a clear example of how reliance on third-party agents and a third-party’s use of shortcuts can expose your company to massive liabilities. 2022 WL 1419910 (2022).

Categories: Litigation

More than ever, companies aspire to increase the reach of their businesses by opening secondary or satellite offices in different states.  While this can be an effective tool for expansion, it opens the business to potential liability in multiple forums which may have different or contradicting rules and regulations, particularly when addressing the rights of employees. As with many legal complexities associated with cross-border transactions, one of the most common ways to limit this uncertainty is through the use of forum selection clauses—contractual provisions which dictate the applicable law or potential legal forums for disputes arising out of those contracts.

A California appeals court recently determined that debtors who attempt to avoid debt collection by moving their assets out of state and into a different legal form may be liable for fraudulent transfer under California law.  On January 7, 2021, the California Court of Appeals issued a decision in Nagel v. Western (2021) 59 Cal.App.5th 740.  In Nagel the court held that under California’s Uniform Voidable Transactions Act (the “UVTA”), “physically relocating personal property and transmitting or transporting sale proceeds out of state, then transmuting them into a different legal form, may constitute a direct or indirect mode of parting with assets or one’s interests in those assets.”  This means that such transfers would fall under the fraudulent transfer prohibitions of the UVTA.  In short, debtors can no longer feel safe trying to shield their assets from creditors by moving them out of state and changing their form.  And Creditors have a new mechanism at their disposal to try to access those assets despite such maneuverings on the part of the debtors.

Three months since our last update on the impact of COVID-19 on commercial lease payment obligations (here), COVID-19 continues its onslaught throughout the United States with now more than 717,000 confirmed cases in California alone. The State of Emergency in California continues, and the Executive Order that previously granted local jurisdictions the authority to impose moratoriums on residential and commercial evictions has likewise been extended. This alert will address the continuing moratoriums on commercial evictions throughout various jurisdictions at the local level, and their impact on commercial lease payment obligations.

Categories: Business, Lease

In MSY Trading Inc., et al. v. Saleen Automotive, Inc., the California Court of Appeal recently ruled on a question of first impression: whether a postjudgment, independent action to establish alter ego liability for a judgment on a contract is subject to an award of attorney fees (pursuant to the contract) for a prevailing party, even if the prevailing party had not signed that contract.  The Court of Appeal affirmed that any prevailing party, having prevailed in an action based on the contract, could properly seek attorney fees as allowed by the contract.  The Court of Appeal also noted that had such alter ego allegations been made in the prior breach of contract action, the prevailing party would most certainly have been entitled to recover its attorney’s fees —  therefore, the postjudgment, independent action to establish alter ego liability on that judgment must be considered an action based on the contract.

Categories: Business, Litigation
California’s Policy Against Non-Compete Agreements Does Not Necessarily Shield An Employee’s Actions During His Or Her Employment

In Techno Lite, Inc. v. Emcod, LLC, the California Court of Appeal recently affirmed the finding that an employee can be liable for fraud when said employee violates his promise not to compete with his employer while still employed.  Though public policy in California places strict limitations on non-compete agreements after an employee has left employment, this shield was never meant to become a sword by which an employee could undermine his employer with impunity even before his employment ends.

Substantial Performance When Time Is (Not) Of The Essence

In Magic Carpet Ride LLC, et al. v. Rugger Investment Group, LLC, the California Court of Appeal recently reversed a trial court’s decision to grant summary adjudication on a breach of contract claim where the defendant was eight days late in depositing a required lien release.   Even though the contract stated that “time is of the essence” and the late deposit violated the strict terms of the contract, the Court of Appeal clarified that it could be considered substantial performance, creating a triable issue of material fact which made summary adjudication improper.

Categories: Business, Litigation

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