0 comments on “California Drivers Must Soon Drop The Phone”

California Drivers Must Soon Drop The Phone

By David S. Olson, Esq.

California law presently prohibits a person from driving a motor vehicle while using an electronic wireless communications device “to write, send, or read a text-based communication,” which the Vehicle Code defined as “using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.” California courts, following the language of the legislation, refused to expand the prohibition on cell phone usage while driving beyond emailing, instant messaging, and texting.

California employers, who may be held liable for injuries caused by employees driving for business purposes, should be aware of an expansion of the prohibition on cell phone usage that will take effect on January 1, 2017.  The new law now generally prohibits anyone from driving “while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.” This expansion will now presumably preclude a broad range of cell phone operations while driving, including checking maps and online surfing.

While the penalties for violating the law–$20 for a first offense and $50 for each subsequent offense–are not severe, the legislative history is clear that the law is aimed at preventing and reducing deaths and injuries caused by distracted driving.  Violations of the law would be admissible in lawsuits.  As such, employers should both educate employees who may drive for business purposes on the significant change in the law and take reasonable steps to ensure compliance with the new law by employees during such trips.


Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions about the new expansion of the California law relating to cell phone usage while driving that will take effect on January 1, 2017, please feel free to contact David Olson by email at dolson@clarktrev.com or telephonically at (213) 629-5700.

0 comments on “For Real Estate Transactions, Get It In Writing!”

For Real Estate Transactions, Get It In Writing!

California Real Estate Agreement

By David S. Olson, Esq.

As a general rule, agreements need not be in writing to be enforced although proof of an agreement, and its terms, are obviously far easier when the agreement is reduced to writing. Some agreements, however, must generally be in writing to be enforced under California’s statute of frauds. Among those are agreements respecting the purchase and sale of real property, real property leases for in excess of one year, and agency agreements respecting purchases and sales of real estate and leases of real property for in excess of one year.  As a recent California case drives home, when it comes to California real estate transactions, make sure any agreement is in writing.

In Westside Estate Agency, Inc. vs. James Randall, the Court held that licensed real broker Stephen Shapiro, the principal of Westside Estate Agency, Inc., was not entitled to a $925,000 commission because the agency agreement between Shapiro and his friends, James and Eleanor Randall, was not in writing.  Shapiro had agreed to represent the Randalls in their quest to buy a home in Los Angeles but failed to obtain a written agreement to that effect.  While the Randalls ultimately purchased a $46.25 million Bel Air property Shapiro had located for them, Shapiro’s lawsuit seeking payment of his commission was dismissed by the courts because of the lack of a written agreement between Shapiro and the Randalls.

There are limited exceptions to the general rule of unenforceability of contracts that fall within the statute of frauds.  As the Westside Estate Agency case underscores, however, anyone entering into an agreement respecting the purchase, sale, or leasing of real estate in California, or respecting payment of a commission for such transactions, would be very wise to memorialize the agreement in a writing signed by the parties.  Otherwise, and as the broker in the Westside Estate Agency case learned the hard way, there is a very good chance the courts will refuse to enforce the agreement.


Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions about agreements respecting the purchase, sale, or leasing of real estate in California, or respecting payment of a commission for such transactions , please feel free to contact David Olson by email at dolson@clarktrev.com or telephonically at (213) 629-5700.

0 comments on “Tipping the Scales of Justice?”

Tipping the Scales of Justice?

By David S. Olson, Esq.

The future direction of the United States Supreme Court was a campaign issue this year because decisions of the Supreme Court affect all Americans in their personal lives and many businesses. For example, in 2015 alone, the Supreme Court handed down decisions regarding same-sex marriage, free speech rights, housing, pregnancy, and employment discrimination claims, and pollution limits, to name just a few.   One of the first things President-elect Donald Trump will do upon taking office is select someone to fill the seat left vacant by the passing of conservative Justice Antonin Scalia earlier this year.  Based on a previously posted list of 21 candidates from whom the President-elect stated he would choose, Mr. Trump will be looking primarily to individuals who have already proven themselves to be conservative judges.  As such, President Trump’s first selection should not change the political composition of the Court from the time Justice Scalia was on the bench.

Any additional picks would, however, potentially alter the Court’s liberal/conservative composition and thus future decisions for potentially years to come. For example, Justice Ruth Bader Ginsburg, appointed by Bill Clinton, is solidly liberal. She is the oldest member of the Court and turns 84 in March.  Justice Anthony Kennedy, a Reagan appointee who occasionally sides with the Court’s liberal block, is, at 80, the Court’s second oldest member. Another Clinton appointee, liberal Justice Stephen Beyer, recently turned 78, making him the third oldest member of the Court.

Trump’s list, which was released initially in May of 2016 and supplemented in September 2016, is comprised entirely of sitting judges with proven track records with the sole exception of Republican Senator Mike Lee of Utah. Senator Lee previously served as an Assistant United States Attorney and clerked for conservative Supreme Court Justice Samuel Alito, Jr., a George W. Bush appointee.  The list contains two state court judges from Michigan, and state court judges from Colorado, Utah, Minnesota, Wisconsin, Texas,  Georgia, Florida, Iowa, and Kentucky.   Also included are federal court judges from the third, sixth, eighth, tenth, and eleventh circuit courts of appeal, as well a United States Court of Appeals Judge for the Armed Services.  Three of the potential nominees clerked for Supreme Court Justice Clarence Thomas, two clerked for Justice Kennedy, one clerked for Justice Scalia, and one for Justice Alito.

History shows that Presidents can live to regret their Supreme Court appointments. President Eisenhower famously called his Supreme Court nominations (which included liberal Chief Justice Earl Warren) the “biggest damn fool mistake I ever made,” Richard Nixon unwittingly appointed the justice who went to author the seminal abortion opinion, Roe v Wade (Justice Harry Blackmun), and, more recently, Justice David Souter has turned out to be far more liberal than contemplated by President George W. Bush.  It appears, based on his published list of candidates, that President-elect Trump has already put considerable time, thought, and effort into maximizing the chance that he can avoid the same fates as Presidents Eisenhower, Nixon, and George W. Bush.  History will be the judge.


Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions, please feel free to contact David Olson by email at dolson@clarktrev.com or telephonically at (213) 629-5700.

0 comments on “Computer Services Provider Not Liable For Member Ratings”

Computer Services Provider Not Liable For Member Ratings

By David S. Olson, Esq.

In a decision issued on September 12, 2016, Kimzey v. Yelp! Inc., the Ninth Circuit Court of Appeals upheld a federal district court’s dismissal of a Complaint against Yelp! Inc.  The Complaint sought to hold Yelp responsible for negative reviews posted on http://www.Yelp.com about the plaintiff’s locksmith business.  The plaintiff alleged that Yelp created and developed content, including by way of its star-rating system that assigns businesses overall star ratings based on Yelps’ user’s ratings.

While noting that the plaintiff’s contention had “superficial appeal,” the Ninth Circuit relied on Section 230 of the Communications Decency Act (CDA) in affirming the dismissal of the Complaint. That Act immunizes providers of interactive computer services against liability arising from content created by third parties.  The Ninth Circuit rejected the contention that Yelp’s star rating system transformed Yelp into an author as the Yelp star-rating system relied on rating inputs from third party reviewers, which Yelp then simply reduced into a single, aggregate metric.  The Court stated that Yelp’s star-rating system is a neutral tool operating on voluntary inputs and thus protected under the CDA.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions, please feel free to contact the author by email at dolson@clarktrev.com or telephonically by calling (213) 629-5700.

0 comments on “Bring It On Home: Don’t Delay In Asserting Claims”

Bring It On Home: Don’t Delay In Asserting Claims

By David S. Olson |

In an April 8, 2016 ruling, the Central District Court of California held that a 2014 case alleging copyright infringement could proceed to trial notwithstanding that the underlying song, Taurus (by the rock band Spirit), was released in 1968, whereas the allegedly infringing song, the iconic Stairway to Heaven by Led Zeppelin, was originally released in 1971.  The decision is not getting a whole lotta love from the general public or Zep fans who have been made to wonder why the plaintiff’s case was not found to be untimely.

Since 1957, the Copyright Act has required that infringement actions be filed within three years. In deciding the motion for summary judgment filed by the defendants based on laches (unreasonable delay), District Court Judge R. Gary Klausner found that he really did not have two paths he could go on because a new, remastered version of Stairway to Heaven was released in 2014 and the lawsuit was thus in fact filed within the three year limitations period in the Copyright Act.  As such, per binding Supreme Court precedent, the case could not be barred by the doctrine of laches and would have to wind on down the road to trial.

Judge Klausner’s decision has generated a lot of public comment but it is important to remember that this ruling can and should be seen as a case specific exception to the general rule that one must act quickly in asserting claims or else face the prospect of seeing those claims getting trampled under foot by a statute of limitations, laches, or related time bar.   As such, the song remains the same in that any time you believe you have been or may have been civilly wronged, it is still as critical as ever that you consult with an attorney as quickly as possible, including to ascertain the time in which you have to assert any claims.  Acting promptly ensures you will not be left dazed and confused later if your claims are dismissed based on a failure to act in a timely manner.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice when considering this or any other legal issue.  If you wish to consult with the author of this post, please contact David Olson by email at dolson@clarktrev.com or telephonically by calling him at (213) 629-5700.