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How it works

There are a number of instances where an individual who is injured in a car accident is partly to blame for the accident. When this is the case, how does a person navigate receiving compensation for the injury or the damage to their vehicle? This article will discuss this subject. In a personal injury claim the person who is said to be at fault for the car accident is ultimately the person responsible for paying for any damage caused by the accident as a result of their negligence [Negligence | Wex | US Law | LII / Legal Information Institute (cornell.edu)]. But, in the event that it is difficult to determine who is at fault, or if there is more than one party at fault for the accident, fault may have to be apportioned or measured as between the negligent parties. If you need legal advice with regard to your car accident, speak to a Bakersfield car accident attorney at  today. The state of California uses pure comparative negligence laws when it comes to matters of fault. This basically means that even if a party is 99% negligent in an accident, he or she still has the right to receive compensation for their injuries or losses as damages. However, the question that comes next is who determines fault in a car accident? When filing a car accident insurance claim it is the insurance company that makes the first determination as to fault. They assign percentage of each party’s fault for the accident corresponding to the conduct of each driver, at least in their opinion. In order to determine who is at fault and their percentage of fault, the insurance claims adjuster bases the percentage of fault on the circumstances linked to the accident and state laws in order to come up with the determination of the driver that acted negligently in the car accident.  A   good lawyer representing you may be able to fight the insurance company’s determination of fault. There are a number of scenarios that may play out when it comes to the percentage of fault and the receipt of compensation. Some of them are: An insurance company will pay their insured’s amount of fault and the claimant’s insurance company pays the remainder, or The insurance company whose driver has the largest percentage of fault may pay the entire claim The determination of how much payment will be made as compensation depends on the insurance company’s policies in this regard, as well as on a lawyer’s ability to fight for the maximum amount of compensation. It is not uncommon for insurance adjusters to work together with their clients in order to determine the party’s percentage of fault. However, if the driver does not agree with the insurance adjuster with regards to the percentage of fault, the driver may choose to seek legal counsel and the matter may go to court to determine fault and the percentage of fault. There are a number of factors that affect the determination of fault. Some of these are: Negligence laws – the way the state views negligence are applied. For example, if the state has adopted pure comparative fault. Police reports and other evidence – a review of the police report gives an idea of the accident and any related evidence must be reviewed too.  Even of the police determine one party is at fault, a personal injury lawyer may be able to challenge that determination. Personal injury protection (PIP) – in some states, PIP pays out to a driver despite fault.  California, however, does not have PIP, but on other states a n injured person might be able to take advantage of PIP even if they are at fault.

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Foreseeability and Proximate Cause

The majority of personal injury cases determine who was at fault in an incident or accident through the question of negligence. The basic definition of negligence is where one fails to use reasonable care in a specific situation. While this is a straightforward definition proving negligence, on the other hand, requires the plaintiff to show that the person who caused the injury was the actual cause of the injury and the proximate cause of that injury. This article will discuss foreseeability and proximate cause in proving fault in a personal injury case. According to the Cornell Law School Legal Information Institute [Foreseeability | Wex | US Law | LII / Legal Information Institute (cornell.edu)] foreseeability is said to ask “how likely it was that a person could have anticipated the potential actual results of their actions.” Foreseeability is the legal concept used to find out the proximate cause of an accident. Proximate cause is defined [Proximate cause | Wex | US Law | LII / Legal Information Institute (cornell.edu)] as “an actual cause that is also legally sufficient to support liability.” Foreseeability and proximate cause are applicable in car accident cases, therefore, seek out a Bakersfield car accident attorney for legal advice in your case. The foreseeability test asks the question: should the person causing the injury have reasonably foreseen the likely results that would have come from their actions? Generally, the law limits the scope of liability through foreseeability by the type of harm and the way it was instilled but it does not focus on the extent of harm. Let us consider what these three elements mean. Unforeseeable type of harm – the person who causes an injury is not liable if the type of harm suffered does not foreseeably stem from their act of negligence. For example, if Daphne dropped a glass bottle on the floor and did not clean it up, she would be liable for injuries caused to anyone who cuts themselves from the glass. But if a freak fire results from sunlight hitting the broken glass at a specific angle and others are injured in the fire, Daphne is likely not liable for such injuries as this type of harm is not foreseeable by her negligent actions. Unforeseeable manner of harm – this is when a person who causes injury is not at fault for a superseding cause when such a cause was not foreseeable. The superseding cause breaks the chain of causation between the initial act of negligence and the injury. Some examples portraying superseding causes that are unforeseeable include: Acts of God – such as earthquakes, hurricanes, volcanoes, etc. Third-party criminal acts, such as burglary Third-party intentional tort, such as false imprisonment, assault Superseding causes that are generally considered to be foreseeable are: Rescuers who cause harm – passersby who may come to the aid of an injured person but may worsen the person’s injuries by moving him/her Healthcare provider negligence; that is doctors and nurses The weakened condition of the injured person may lead to subsequent injury or disease The unforeseeable extent of harm – this is whereby the person who causes injury is at fault for the full extent of whatever harm they have caused, whether or not the extent of harm was foreseeable.  

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Valuing Your Case: Lawyers

If you were involved in an accident that resulted in causing injury due to someone else’s negligence you may be eligible for compensation through a personal injury claim. Such claims can be facilitated by a personal injury lawyer who will provide representation and advice to a plaintiff during the process of filing and litigating the case. This article will discuss how personal injury lawyers value a personal injury case. The key reason why anyone would hire a personal injury lawyer is in order for them to work at getting you, the injured individual, a fair amount of compensation for the injury or loss you have sustained. As such, it is important for the lawyer to value your case in order to be able to identify what a fair amount of compensation would be. Car accident lawyers in Bakersfield CA  and most personal injury lawyers identify that an out-of-court settlement is a preferred option as compared to going to court. It must be noted that, in personal injury law damages [Damages | Wex | US Law | LII / Legal Information Institute (cornell.edu)]; that is the injuries you sustain and any losses (property, medical expenses) are what is used to calculate the money for your compensation. There are three types of damages; economic, non-economic and punitive. Punitive damages are designed to punish a grossly negligent person and are only used in specific cases, however, they typically do not form part of the compensation calculations. Economic damages are those financial losses that are suffered as a direct result of the injury and the accident. They are relatively easy to calculate and include medical bills and lost wages. Non-economic damages are losses that are difficult to calculate as they do not come with a dollar figure attached to them. They are often referred to as the “pain and suffering damages”. They are often associated with mental anguish, loss of consortium, stress and anxiety, pain and suffering, etc. An experienced attorney will know how specific insurance companies operate and will likely have an idea of how much money is available. When it comes to cases that go to court, the experienced attorney will need to do some research in order to determine what juries award in cases similar to yours. The attorney will also do an honest assessment of the value of your case and what you consider to be fair and this will inform the settlement amount the attorney will demand on your behalf. The truth of the matter is that only you, the injured individual, knows the true value of your case. However, when determining a settlement value for a claim it is of the utmost importance to keep in mind that the goal is to recover compensation and in order to recover such compensation, a form of compromise is necessary. That being said, where the plaintiff has a strong case with indisputable facts and the liability is clear, it is likely that the case is a high-value one and can be settled for a high value amount. Speak to your attorney for his or her honest opinion on the value of your case and work towards receipt of compensation.

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| Read Time: 2 minutes | Business Law

California Laws on Driving and Cellphone Use

Distracted driving is one of the most common causes of accidents. This has become worse with the use of cell phones while driving. The state of California made it illegal for a driver to use a hand-held cell phone or to text while driving. This article will discuss the laws and penalties of cellphone use while driving in the state of California. There are a number of laws in place that have been provided for when it comes to the use of cell phones while driving. In fact, California has a number of laws that ban cellphone use while driving [Distracted Driving | Office of Traffic Safety (ca.gov)]. Despite the assumption that an individual may be able to multitask, science has proven that it is impossible to multitask and give equal attention to the tasks that are being carried out Instead, the brain allows one task to be fully carried out while the other is on ‘standby’. As is the case with driving and texting, one of these tasks suffers at the expense of the other. If you are involved and injured in an accident where the other driver was on their cell phone, speak to Bakersfield auto accident lawyers today. Generally, most states prohibit the use of hand-held cell phones to less experienced drivers and place restrictions on more experienced drivers. However, the state of California bans all drivers from using hand-held cell phones while driving. However, this ban does not extend to passengers; they are free to use their cellphones as they wish while in a vehicle. Further, this law extends to drivers in California regardless if they live in a different state or not. That being said, it must be noted that there exist a few exceptions with regard to the ban. These exceptions include the following: When making emergency calls to law enforcement agencies, medical providers, the fire department, or other emergency service agencies Use is allowed for persons operating authorized emergency vehicles and persons driving vehicles on private property The state of California uses a point system for moving violations, as of July 1, 2021 violations linked to the use of hand-held cell phones while driving will result in one point if it is within a 36-month period of a previous distracted driving offense. In addition, persons who violate the handheld cellphone ban will be subjected to fines. For a first offense, the base fine is $20, for a second and subsequent offense, the base fine is $50. However, it must be noted that these are court costs and other fees, and therefore it is likely the actual amount an offender may be required to pay will be much more than the base fine. For example, it is likely that the expected total charges in a first violation will be more than $150; while in the case of a second or subsequent violation the total charges will likely be over $250. Unlike the handheld cellphone ban, the rules associated with hands-free cell phone use depend on the age of a driver. More restrictions are imposed on drivers younger than 18. Texting while driving is prohibited.  

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COVID-19 and Public Meetings: An Update on the Brown Act Requirements

 On March 17, 2020, Governor Newsom issued a new Executive Order that relaxed additional requirements of the Brown Act. Water Law attorney Brett Stroud prepared the following update for our clients and those who conduct business at public meetings:  Yesterday, Governor Newsom issued Executive Order N-29-20 (“March 17 Order”), which altered some of the provisions of his previous Executive Order N-25-20 (“March 12 Order”), including his relaxation of certain Brown Act requirements. The March 17 Order differs from the March 12 Order in one significant respect: it removes the requirement that an agency provides a publicly accessible location from which members of the public can observe the meeting and provide public comment.  Instead, an agency may hold the meeting entirely by teleconference, provided it also “implements a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the Americans with Disabilities Act and resolving any doubt whatsoever in favor of accessibility” and “advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment.” In short, the March 17 Order permits an agency “to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public.”  The agency must provide notice within the usual timeframe, provide a method for members of the public to offer public comment during the teleconference meeting, and provide a procedure for members of the public to request accommodations based on disability. Like the March 12 Order, the March 17 Order applies specifically “during the period in which state or local public officials impose or recommend measures to promote social distancing, including but not limited to limitations on public events.”  On March 16, the California Department of Public Health issued updated guidance relative to public gatherings.  That guidance indicates that “all gatherings should be postponed or canceled.” If you have any questions or would like specific advice on applying the March 17 Order for your agency, please feel free to contact an attorney in our Water and Special Districts Department.  In particular, if you plan to hold a meeting by teleconference, please contact us for assistance in preparing your agenda.  We can be reached by phone at 661-327-9661.

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COVID-19 and Public Meetings: Brown Act Implication of Executive Order N-25-20

On March 12, 2020, Governor Newsom issued an executive order relaxing certain requirements of the Brown Act and the Bagley-Keene Act, affecting public meetings. Water Law attorney Brett Stroud prepared the following information: On March 12, 2020, Governor Newsom issued Executive Order N-25-20 (“Order”), exercising his emergency powers under Government Code sections 8567, 8571, and 8572.  The Governor has the authority to “suspend any regulatory statute, or statute prescribing the procedure for conduct of state business … where the Governor determines and declares that strict compliance … would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.”  (Gov. Code, § 8571.)  Exercising that power, Governor Newsom has temporarily relaxed certain requirements of the Brown Act and the Bagley-Keene Act. Ordinarily, an agency must post notice of a teleconference meeting at all locations from which any board member will participate, allow the public to attend and offer public comment at any of those locations, and have at least one board member physically present at each location.  Furthermore, a quorum of the Board must participate from locations within the agency’s boundaries.  Those requirements are suspended by section 11 of the Order, and agencies are permitted “to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public.”  The agency must provide notice within the usual timeframe and must provide “at least one publicly accessible location from which members of the public shall have the right to observe and offer public comment.” It should be noted that the authorization applies specifically “during the period in which state or local public officials impose or recommend measures to promote social distancing, including but not limited to limitations on public events.”  The California Department of Public Health has issued such guidance relative to public gatherings. The guidance requires cancellation or postponement of gatherings larger than 250 persons.  Smaller gatherings should only be held if the venue allows for 6 feet of distance between persons.  If individuals at higher risk may be present, gatherings should be limited to 10 individuals.  In the public agency meeting context, all members of the public are permitted to attend, including those at higher risk, and the agency cannot limit attendance to 10 individuals. If you have any questions or would like specific advice on applying this Order for your agency, please feel free to contact an attorney in our Water and Special Districts Department. We can be reached by phone at 661-327-9661.  

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Estate Planning Tips for Small Business Owners

Starting with your initial idea, building and owning a business can be an exciting venture from day one. Developing a proper business plan, securing financing, marketing, paying taxes and all of the other small, but significant, details will surely be some of the most challenging yet rewarding work that you will perform in your lifetime. But have you ever thought about the role you will play in your business after your life is over? Developing a comprehensive estate plan provides a well-developed plan to ensure that your life’s work survives even after you pass. As a small business owner, you spend an incredible amount of time working to establish and grow your business throughout your life. It seems only reasonable that you should take the time to create a plan for your business upon your death. When talking to your estate planning attorney, consider these tips for your business: Avoid Exorbitant Taxes Upon death, the IRS may claim estate taxes on all assets of your estate. Reviewing your personal and business assets as part of a comprehensive estate plan can help minimize the tax exposure of your estate and facilitate an organized transition or sale of the business. To avoid taxes, there are various IRS sections that can help. One section, Section 6166, will allow your loved ones more time to pay the tax by paying the estate tax in 10 annual installments. Another, Section 303, will allow your family to redeem your stock with very little tax penalties. You should talk to your family about these tax sections and determine if your business will be eligible. Creating a plan and instructions for your survivors will help them to navigate these filings.  Create a Buy-Sell Agreement If your business is owned by more than one person, a buy-sell agreement dictates how the partnership or LLC will be distributed upon one owner’s death or incapacitation. Without one, family members may be stuck owning a business they do not want, and partners may be forced to work with people they did not intend. A buy-sell agreement puts in place a plan that when an owner passes, their shares must be bought out by the other owners at a fair market price. These agreements can even establish a sale price so that family members know what they can expect to receive from the sale. In a buy-sell agreement, you can also block certain individuals from having a role in the business. Purchase a Life Insurance Policy It is possible that you have no intention of your business surviving after your passing. Referred to as owner-dependent businesses, some small businesses provide a stable income for the owner, however, there is not a lot of money reinvested in the business and exponential growth is not the intent. If you depend on your business for income and you have a family, when you pass, that income will be gone. A term life insurance policy can serve as income replacement for your family. Additionally, a life insurance policy or irrevocable life insurance trust (ILIT) can help your partners with the capital they might need to purchase your shares if you have a buy-sell agreement. As a small business owner, you owe it to your family and your business to make plans for your passing. Dealing with their loss will be complicated enough without navigating the intricacies of small business taxes and sales. Discuss your options with an experienced estate planning attorney and leave your legacy the way you would want it.

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| Read Time: 3 minutes | Business Law

Simple Explanation of Business Formations | Business Law

A SIMPLE EXPLANATION OF BUSINESS FORMATIONS Starting a business can be a rollercoaster of emotions: excitement to finally be building your dream, fear of financial instability and then, the uncertainty of the legal aspects of your new endeavor may sink in. Consulting a business law attorney can help you make sense of your legal obligations as a business owner as well as aid in setting up your business in the way that makes the most financial sense for your situation. With the help of an experienced attorney, you can spend more time in the excitement and less time in the uncertainty of your business. One of the first things to consider when you’re ready to start your business is its formation. There are four basic forms your business can take, each with different financial considerations for your personal assets as well as various obligations where taxes are concerned. Below you will find a list of these four business forms and a brief explanation of each. Sole Proprietorship In a sole proprietorship, you are the exclusive owner of your business. This is the simplest and least expensive type of business to form. Depending on your occupation, your state or county may require you to hold a business license to operate. Otherwise, there are no incorporation documents to file. You can do business under your name or apply for a DBA (doing-business-as) if you want to operate your business under a different name. Protection: As a sole proprietor, you have no personal protection from lawsuits or creditor claims. Your personal assets can be seized to satisfy your business debts. Taxes: Sole proprietors report business income and expenses to the IRS on a Schedule C when filing individual income tax returns. Partnership Other than a partnership agreement, there are no documents to file with your state when forming a Partnership. Your partnership agreement states how your business operates and how the profits and losses are shared. As many partnerships are formed between friends, it is advisable to have a business law attorney help you create the partnership agreement so everyone is well informed of the specifics of your agreement. Protection: In most states, each partner in a partnership has unlimited liability. This means debts, lawsuits and the action of the one partner become the responsibility of all partners. Taxes: The business entity must file a partnership information return with the IRS each year. Profits and losses are reported on each partner’s individual income tax return. Limited Liability Company (LLC) Any business owner may form a limited liability company by filing articles of organization or a certificate of formation. Owners of an LLC are known as members and can number as small as one member. This is a common business formation since it offers more protection of personal assets and less risk to the business owner. Protection: When you take on debt or open a bank account as an LLC, the LLC itself is responsible for the accounts rather than the members. Profits and losses flow through the company to each member. Taxes: LLC members decide upon formation if they want to be taxed as a corporation or a partnership. LLC’s filing as partnerships file the partnership tax returns. LLC’s filing as corporations must file taxes either as a C corporation or S corporation. A qualified business law attorney can help you decide what the proper filing method is for your LLC. Corporation The most formal of the business formations is the Corporation. It is also the most expensive. Your business law attorney will help you file Articles of Incorporation with the California Secretary of State. There are more rules governing ownership of corporations than any other form. For example, only U.S. citizens can be owners. In an S corp, there cannot be more than 100 owners and those owners must be individuals, not partnerships or other corporations. Corporations must conduct annual meetings and file annual reports in their incorporating state. Protection: Owners in a corporation have limited liability protection meaning their personal assets cannot be used to satisfy debts owed by the corporation. Taxes: Profits and losses are retained at the corporate level in a C corp but are subject to double taxation. Simply put, this means that owners are taxed on their earnings and shareholders are taxed on corporate dividends. Most often, the owners are the shareholders. Both C and S corporations file corporate tax returns, annual reports and are obligated to meet federal and state record-keeping requirements. A business law attorney at Young Wooldridge, LLP can inform you of legal options you may not know you have. If you have questions or need help forming your business, contact The Business Law Department at Young Wooldridge, LLP.

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| Read Time: 2 minutes | Business Law

Kern Business Journal Executive Profile: Jerry Pearson

Jerry Pearson is a partner and business attorney at Young Wooldridge, LLP, whose practice focuses on handling labor and employment matters on behalf of California businesses and keeping his clients in compliance with the California state labor code. This executive profile was originally published in the February/March 2017 Issue of Kern Business Journal. Name: Jerry Pearson Title: Attorney Company: Young Wooldridge, LLP About the company/organization: Since 1939, Young Wooldridge, LLP has represented business and corporate clients, public agencies and individuals in a wide range of legal matters. The firm provides high-quality legal services in a variety of practice areas including business transactions and litigation, employment and labor issues, water and agriculture, oil and gas, real estate law, estate planning and probate and civil litigation. We work hard to deliver positive results in a cost-effective manner for our clients. What I do: My practice is limited to representing management in all aspects of labor and employment matters. Where I grew up: I was born in Torrance, California and grew up in Fresno. How I landed in Kern County (if applicable): After graduating from law school I was hired by the Kern County District Attorney’s office and we’ve been here ever since. Education: B.A. In History from CSU-Fresno and my JD from San Joaquin College of Law in Fresno. Family: Married to my wife Denise for 26 years. We have two daughters, Lindsay 19 and Emily 15. Hobbies: I follow the Boston Red Sox–literally. My wife and I travel to see them in different cities and stadiums including our favorite, Fenway Park. What was your very first job and what did you learn from it? My first job was working at a baseball academy owned by former Fresno State coach Bob Bennett. I learned that working outdoors in the Central Valley really wasn’t for me. Who or what has been the biggest influence on your career? My family is the biggest influence in my career. My wife Denise has played a major role in helping me choose my career path and she has an uncanny ability to keep me on the right path. My daughters are the reason I do this each day, they are the inspiration for what I do. What was the best piece of advice you ever received? “Know what you don’t know” What is the most challenging part of your job? Without a doubt keeping up with the ever-changing landscape of employment laws in California and helping my clients stay in compliance What is the most rewarding part of your job? I am rewarded each day when my clients continue to put their trust in me. What is the most memorable accomplishment of your career?  Walking into the courtroom my first day on the job as a deputy district attorney and conducting a jury trial. I didn’t even know which table to sit at when I walked in, but I got a conviction before I walked out.          

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