Sara Menz was admitted to the California State Bar in 2010 and is licensed to practice law before all the state courts of California and the United States District Court for the Central District of California. Ms. Menz represents both private and public entity clients with her practice focusing on labor and employment litigation and general business litigation. Ms. Menz received her B.A. in International Relations from Rhodes College, where she graduated with honors. While attending university, she served as an intern in the Lima, Peru field office of the United Nations Children’s Fund. She received her Juris Doctorate from the University of Southern California Gould School of Law in 2010. While in law school, she was a member of the USC Hale Moot Court Honors Program and was named Hale Moot Court Champion in 2009. She also served on the Hale Moot Court Board as an Editor and the Public Interest Law Foundation Board, chairing the annual PILF Auction to raise funds to support and encourage law students to pursue careers in the public interest.

Bergman Dacey Goldsmith is a full-service law firm serving California public entities, multi-national Fortune 500 corporations and their officers, entrepreneurs, and individual clients for 30 years. To learn more about our award-winning attorneys and extensive experience, we encourage you to visit our website at www.bdgfirm.com. Thank you.

Mr. Bergman is the co-Lead of the Environmental Practice Group of Mackrell International, the Chair and one of the founders of the Litigation Counsel of America’s (“LCA”) International Institute of Natural Resources, Energy, and Environmental Law, and co-Chair of the U.S. Mexico Bar Association Environmental Law Committee. In addition, Mr. Bergman was named a 2013 California Super Lawyer, is a member of the American Board of Trial Advocates (ABOTA), a Fellow of the LCA, and on the American Inns of Court. He regularly speaks on various issues, including environmental issues.

We encourage you to visit our firm website, www.bdgfirm.com, to learn more about our award-winning attorneys. For 30 years, Mr. Bergman and the other attorneys of Bergman Dacey Goldsmith have provided our clients with sophisticated and personalized legal service.

Power Point Presentations:

BNSF-PPT

BDG-CERCLA.4-11-13

Mackrell-CERCLA-Webinar-PPT

 
For his “high standards of leadership, outstanding accomplishments, and dedicated service to education” John also received the following honors at the dinner:

• Certificate of Recognition from the United States Congress;
• Certificate of Appreciation from the California State Legislature;
• Certificate of Commendation from the County of Los Angeles;
• Certificate of Commendation from the City of Alhambra;
• Certificate of Appreciation from the City of Monterey Park;
• Certificate of Recognition from the City of Rosemead; and
• Certificate of Appreciation from the Alhambra Unified School District.

If Bergman Dacey Goldsmith, PLC. can help you with any of your legal needs, please do not hesitate to contact John at jdacey@bdgfirm.com.

More information about LCA can be found at www.trialcounsel.org.

Super Lawyers is a listing of outstanding attorneys who have attained a high degree of peer recognition and professional achievement. Super Lawyer Magazine recognizes only 5% of lawyers in California. They were selected after considerable polling and peer evaluation with a detailed research process that evaluates each candidate based on 12 indicators of professional achievement.

For 30 years, Bergman Dacey Goldsmith has provided our clients with sophisticated and personalized legal service. We have earned our reputation for litigation excellence and offer our clients seasoned lawyers and knowledgeable advice in the most cost-effective manner. We encourage you to visit our website at www.bdgfirm.com to learn more about our award-winning attorneys and how we can apply our proven strategies for your benefit.

The Southern California Super lawyer 2013 listing is attached.

California Super Lawyers 2013

1. Bergman Dacey Goldsmith recently assisted two separate public entity clients avoid writ proceedings in connection with hotly contested bid protests on projects totaling more than $75 million. On the first project, the second low bidder protested the low bid, contending that the low bidder failed to comply with the good faith outreach requirements set forth in the bid documents. On the second project, the low bidder’s bid was deemed non-responsive and rejected, so the notice of award was issued to the second low bidder. Each project had a bid protest procedure in its bid documents that Bergman Dacey Goldsmith had drafted. After both protests went through the bid protest procedure, both protesting bidders dropped their protests. One recognized the purported factual underpinnings of its protest were not accurate. In the second protest, the protesting bidder’s counsel was convinced by Bergman Dacey Goldsmith that they were relying on an erroneous legal basis.

2. Bergman Dacey Goldsmith recently resolved a dispute between a homeowner and general contractor on a multi-million dollar residential remodel in Beverly Hills. Bergman Dacey Goldsmith’s client had fired the contractor for failure to timely perform and then contacted Bergman Dacey Goldsmith for options. Bergman Dacey Goldsmith helped the homeowner secure a completion contractor and the remodeling project re-started. The original contractor recorded a Mechanic’s Lien and sued the homeowner, contending it was owed over six figures for non-payment. Bergman Dacey Goldsmith was able to get the suit dismissed and the Mechanic’s Lien removed after mediating the case and convincing the original contractor it was simply better to walk away from the case as its downside risk was much greater than the homeowner’s downside risk.

EMPLOYMENT AND LABOR LAW AND LITIGATION

1. Bergman Dacey Goldsmith represented a large national manufacturer of aerospace parts (“Corporation”) in a substantial California Labor Commission matter in which non-employees asserted various wage and hour violations, claiming that the Corporation was a joint employer. The nonemployees alleged that they were not paid wages or vacation time owed, and that the Corporation impermissibly withheld compensation and misclassified certain employees. At the Labor Commission hearing, Bergman Dacey Goldsmith presented evidence and argument demonstrating that the employees were not employees of the Corporation, although the Corporation bought and sold products made by the non-employees, and that there was no misclassification of any non-employee. The Labor Commissioner agreed and issued a well-reasoned 15-page Order that the Corporation prevailed on all grounds; the Labor Commissioner dismissed all Labor Code charges. The non-employees, recognizing the strength of Bergman Dacey Goldsmith’s representation of the Corporation, did not seek to appeal the determinations and have not filed a civil complaint.

2. Bergman Dacey Goldsmith represented a southern California city (“City”) in a substantial Public Employment Relations Board (“PERB”) matter in which multiple unions asserted that the City engaged in unfair practices when the City was forced to reduce its workforce for budgetary reasons. Asserting conduct and evidence extending back a decade, the unions argued that the City unilaterally changed its rules and practices set forth in its Civil Service Rules (“CSRs”) and Memoranda of Understanding (“MOUs”) when it laid off multiple employees without reassigning them. At the PERB hearing, Bergman Dacey Goldsmith presented evidence and argument demonstrating that the CSRs and MOUs should be interpreted in the City’s favor, that the City engaged in consistent practices over a decade, and that the complaining employees did not prove that there were available, budgeted, open positions for which they were qualified. The PERB Administrative Law Judge agreed with the City and found that the City prevailed on all grounds and dismissed all PERB Charges. The unions did not seek to appeal the determinations to the PERB Board, so the decision is final.

3. Bergman Dacey Goldsmith represented several locations of a popular fast food restaurant in a lawsuit filed by a former employee who alleged close to a dozen causes of action, including wrongful termination, failure to pay overtime wages, failure to pay minimum wages, failure to pay wages upon employment ending, common counts, reasonable value of labor performed, intentional infliction of emotional distress, and violations of various sections of the California Labor Code. Bergman Dacey Goldsmith conducted thorough discovery and established that plaintiff lacked key evidence to support many of her claims. Bergman Dacey Goldsmith thereafter, through extensive and difficult negotiations, was able to resolve the remaining claims, substantially limiting its client’s liability and resolving the matter within the client’s limited insurance policy.

BUSINESS LITIGATION

1. Bergman Dacey Goldsmith was retained by a large manufacturing company to substitute in as counsel in a pending unfair competition action in San Diego County against a competitor that was selling alleged non-plumbing-code-compliant products for use and installation in our client’s equipment. Bergman Dacey Goldsmith immediately undertook an aggressive discovery plan to obtain the evidence that it needed to obtain the relief that was necessary and meaningful. After all of the evidence and law was heralded, Bergman Dacey Goldsmith filed a motion for preliminary injunction to enjoin the competitor from, among other things, selling its product on the basis that the sales of those products violated California’s unfair competition law. Following extensive briefing and a hearing of the motion, the Court agreed and issued a Minute Order in which it ruled that the sales, distribution, and installation of the competitor’s product was non-compliant with California law and should be enjoined in California.

2. Bergman Dacey Goldsmith was retained by a global transportation provider company based in Massachusetts to represent it locally in the Central District of California in a trade secret/unfair competition action in which the client was a counter-defendant. Following the counter-claimant’s filing of a motion for preliminary injunction, Bergman Dacey Goldsmith took the lead in preparing and filing opposition papers in only one week following the filing of the motion. The opposition papers brought to light several defects with counter-claimant’s action requiring the counter-claimant to seek relief from the Court for leave to amend its counter-claim. That relief was granted and further briefing was solicited by the Court relating to the impact of the amendment on counter-claimant’s motion. Working with the client’s Massachusetts-based counsel, Bergman Dacey Goldsmith heralded the facts and the law and presented further opposition papers to the Court as to why counter-claimant’s motion should be denied. On the Friday before the scheduled hearing for the preliminary injunction, the Court issued an order denying the requested injunctive relief and vacating the hearing date, in favor of Bergman Dacey Goldsmith’s client.

DISABILITY RIGHTS LITIGATION

Bergman Dacey Goldsmith represented a large public school district facing federal and state class action claims of alleged statutory violations of the Americans With Disabilities Act and California’s parallel statutes, including claims that the class was comprised of thousands of similarly-situated individuals. Bergman Dacey Goldsmith first focused on targeted investigation and legal analysis to successfully defeat class certification efforts by the plaintiffs. Following this procedural win, Bergman Dacey Goldsmith used that momentum to achieve a resolution of the matter that not only protected the public fisc from significant exposure, but also effectuated procedural changes that will help safeguard the public entity from similar future claims. In the end, Bergman Dacey Goldsmith’s efforts protected the client from what could have been significant exposure measuring in millions of dollars in damage claims.

CORP INTL BDG Real Estate Skills In California 2013

Court of Appeal Reaffirms Right of Parties in Eminent Domain Actions to Introduce Expert Testimony on How “Comparable” Sales Data Should Be Adjusted In Light of Differences in Property Improvements.

In the recent County of Glenn v. Foley decision, 2012 Cal.App. LEXIS 1302, the California Court of Appeal, Third Appellate District, held that while expert opinion on the value of comparable properties was inadmissible in eminent domain motions, expert testimony was admissible to opine on how differences in property improvements on comparable properties could affect the valuation of the comparable properties.

In Foley, the County desired to take certain land as part of its effort to expand its landfill. The property owner’s expert opined that even though the property was currently used as grazing land, the highest and best use of the property was as orchard land. The property owner’s expert then opined that when sales of comparable orchard land were reviewed and adjustments were applied to these comparable sales to take into account differences in property improvements, such as existing crops, soil conditions, etc., the subject property was worth $1.7 million. The County did not agree with the property owner’s expert’s analysis and argued that the highest and best use of the property was as its existing use, grazing land, and that the property was only worth $637,000.

The County brought a motion in limine to exclude the valuation opinion of the property owner’s expert on the grounds that the property owner’s valuation method, which made adjustments to the purchase price of comparable properties, included inadmissible opinions regarding the value of comparable properties, when only objective evidence of comparable sales, such as actual sales prices was admissible under California Evidence Code section 822 in an eminent domain action. The trial Court granted the County’s motion and an appeal followed. Reversing the trial court decision, the Court of Appeal held that while expert testimony on the value of comparable properties was not admissible, expert testimony regarding an appraiser’s adjustments to comparable sales prices (to reduce or increase valuations based on improvements on the comparable property) was acceptable if the expert testimony was properly supported.

The Foley decision will likely be used by defendants in eminent domain actions to defeat public entity attempts to exclude the testimony of property owner valuation experts, but the case may also prove useful for public entities defending the admittance of their experts’ testimony under some circumstances.

Should you have any questions about this decision or how Bergman Dacey Goldsmith can help your entity in eminent domain proceedings, or any other legal matter, please contact Brian J. Bergman at (310) 470-6110 or at bbergman@bdgfirm.com.

Have a very happy and healthy New Year.

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AB 1744—Hiring notice and wage statement obligations for temporary services employers

This bill amends Labor Code sections 226 and 2810.5, and adds new Labor Code section 226.1. Under the existing Wage Theft Prevention Act of 2011, employers must provide their non-exempt employees a written notice at the time of hiring that contains specified information, such as the rate and basis of the employee’s wages, and the employer’s name, address, and telephone number.

This bill provides that, for temporary services employers (defined in Labor Code section 201.3), such notices also must include the name, physical and/or mailing address, and telephone number of the legal entity for whom the employee will perform work. Starting July 1, 2013, this bill further provides that temporary services employers must include on itemized wage statements (in addition to the other information required by existing Labor Code section 226(a)), the employee’s rate of pay and total hours worked for each temporary assignment. This requirement does not apply to licensed security services companies.

AB 1844—E-mail and social media account passwords

This bill adds new Labor Code section 980, and prohibits an employer from requiring or requesting an employee or applicant to: (1) disclose a username or password for the purpose of accessing personal social media, (2) access personal social media in the presence of the employer, or (3) divulge any personal social media to the employer.

The bill also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a prohibited request. Employers may, however, continue to request or require passwords to access an employer-provided electronic device. Also, this law does not affect an employer’s existing right to request access to social media when relevant to investigate suspected violations of the law or employee misconduct. California is the third state to enact a social media policy law.

AB 1964—Religious dress and grooming practices protected By FEHA

This bill amends the California Fair Employment and Housing Act (FEHA), Government Code sections 12926 and 12940, to specify the scope of the statute’s protections against potential religious discrimination. The FEHA prohibits an employer from discriminating against an applicant or employee based on his or her religious creed, including all aspects of religious belief, observance, or practice.

This bill specifies that these protections extend to: (1) “religious dress practices,” which include wearing or carrying religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the person’s religious observance; and (2) “religious grooming practices,” which include all forms of head, facial, and body hair that are part of the person’s religious observance.

The bill further provides that an accommodation of a person’s religious dress or grooming is not reasonable if it would: (a) require segregating the person from other employees or the public, or (b) result in a violation of the FEHA or other civil rights laws.

Therefore, the employer must consider addressing this bill (1) by amending handbook provisions that make flat prohibitions regarding dress and grooming practices, and (2) addressing accommodation issues as they arise, similar to addressing accommodations for disabilities.

AB 2103—Overtime rate for non-exempt, full-time salaried employees

This bill amends Labor Code section 515 to prohibit private agreements that contravene the overtime regular rate calculation required for non-exempt full-time salaried employees. Under existing Labor Code section 515(d), to calculate overtime wages earned by such employees, the regular hourly rate used must be 1/40th of the employee’s weekly salary. This bill specifies that payment of a fixed salary to a non-exempt employee must be deemed compensation only for regular, non-overtime hours worked, “notwithstanding any private agreement to the contrary.”

AB 2343 – DOJ Criminal History Reports

This bill requires agencies, organizations, and individuals, that received criminal history information from the California Department of Justice to give notice to an applicant or employee who is the subject of an adverse employment, licensing, or certification decision based on the information obtained. This new reporting requirement models those already found in the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act.

AB 2386—Breastfeeding protected under FEHA

This bill amends the definition of “sex” under the FEHA, Government Code section 12926. Existing law prohibits employment discrimination on the basis of “sex,” defined to include gender; gender identity and expression; and pregnancy, childbirth, or related medical conditions. This bill clarifies that for all purposes under the FEHA, “sex” also includes breastfeeding and related medical conditions. The bill provides this amendment is declaratory of existing law; thus it may be applied retroactively and takes effect immediately.

AB 2396 – Employment of infants in the entertainment industry

This bill extends the current law which restricts the employment of infants in the entertainment industry, by requiring the completion and submission of a medical certification and approval before a temporary permit for the employment of the infant may be issued.

AB 2674—Employees’ right to inspect personnel records; wage statement retention

This bill amends Labor Code section 1198.5, which gives employees the right to inspect their personnel records at reasonable intervals and times. AB 2674 provides the employer must make the records available for inspection by any current or former employee or his/her representative, and provide a copy of the records, within 30 calendar days from receipt of a written request, or if the parties agree in writing, within no more than 35 calendar days. Employers must make available to the current or former employee or representative a form that can be used for the inspection request. The bill further specifies other time, place, and method obligations for inspection and delivery of the records.

The bill requires employers to keep a copy of the employee’s personnel records for at least three years after termination of employment. The bill provides that if a current or former employee files a lawsuit against the employer regarding a personnel matter, his or her right to inspect or copy personnel records ceases during the pendency of the lawsuit. The bill further provides that an employer may: (1) designate the person to whom records requests are made, (2) take reasonable steps to verify the identity of the employee or representative making the request, and (3) redact the names of nonsupervisory employees contained in the records.

AB 2674 also amends Labor Code section 226 with respect to the obligation for employer retention of wage statements. Existing law requires employers to keep copies of wage statements for at least three years, either at the employment site or a central location within the state. This bill clarifies that “copies” may include duplicates of the statements provided to the employee, or computer-generated records that accurately show all information required to be included on the wage statement.

AB 2675—Written contracts for commission pay: exceptions

This bill amends Labor Code section 2751, which requires a written contract of employment for services rendered in the state and paid for by commissions. The current statute excludes from its obligations two types of compensation: (1) short-term productivity bonuses such as are paid to retail clerks; and (2) bonus and profit-sharing plans, unless the employer offers to pay a fixed percentage of sales or profits as compensation for work to be performed. This bill adds a third exclusion category for “temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.”

It is advised that an employer set forth in writing to employees the material terms of all types of compensation paid, including the rates and methods of computation.

SB 1193 – Human Trafficking

This bill will require specified employers to post a notice that contains information related to slavery and human trafficking in a conspicuous area, readily visible to employees and the public.

SB 1255—Remedies for failure to provide accurate itemized wage statements

This bill amends Labor Code section 226(e) to specify the circumstances when employees may recover penalties under that statute for failure to receive accurate itemized wage statements. Section 226 generally requires employers to provide employees with accurate wage statements showing nine specific categories of information, e.g., gross and net wages earned, deductions, and inclusive pay period dates.

If an employee suffers “injury” as a result of an employer’s “knowing and intentional” failure to comply with these requirements, the employee can recover certain penalties for each violation, plus costs and attorney’s fees.

SB 1255 specifies that, for purposes of entitlement to these penalties, an employee is “deemed to suffer injury” in two instances: (1) if the employer fails to provide a wage statement; or (2) if the employer fails to provide accurate and complete information for any of the nine items required, and the employee cannot promptly and easily determine the information from the wage statement alone.