Quote of the Day - At Christmas play and make good cheer, For Christmas comes but once a year.
Merry Christmas and Season's Greetings
The law has precious little to do with Christmas, thankfully, so MIPTC wishes you and yours a wonderful holiday season, whether you celebrate Christmas, Hanukkah, Kwanzaa, Ramadan or any other seasonal festivity.
For my brothers and sisters serving in Iraq, I wish you all peace and safety.
For everyone, I wish a peaceful day and a prosperous New Year.
Do You Struggle With Wrapping Paper? Here's A Solution For Men Who Can't Wrap.
From a friend who got it this site, a Christmas gem for men like me who struggle with wrapping paper:
This is the time of year when we think back to the very first Christmas, when the Three Wise Men -- Caspar, Balthasar and Herb -- went to see the baby Jesus, and, according to the Book of Matthew, "presented unto Him gifts; gold, frankincense and myrrh." These are simple words, but if we analyze them carefully, we discover an important, yet often-overlooked, theological fact:
THERE IS NO MENTION OF WRAPPING PAPER.
If there had been wrapping paper, Matthew would have said so: "And lo, the gifts WERE inside 600 square cubits of paper. And the paper WAS festooned with pictures of Frosty the Snowman. And Joseph WAS going to throweth it away, but Mary saideth unto him, "Holdeth it! That is nice paper! Saveth it for next year!" And Joseph DID rolleth his eyeballs. And the baby Jesus WAS more interested in the paper than, for example, the frankincense."
But these words do not appear in the Bible, which means that the very first Christmas gifts were NOT wrapped. This is because the people giving those gifts had two important characteristics:
1. They were wise.
2. They were men.
Men are not big gift wrappers. Men do no understand the point of putting paper on a gift just so somebody else can tear it off. This is not just my opinion: this is a scientific fact based on a statistical survey of two guys I know. One is my son, Rob, who said the only time he ever wraps a gift is, quote, "If it's such a poor gift that I don't want to be there when the person opens it." The other is my friend, Gene Weingarten, who told me he does wrap gifts, but as a matter of principle, never takes more than 16 seconds per gift. "No one ever had to wonder which presents daddy wrapped at Christmas," Gene said. "They were the ones that looked like enormous spitballs."
I also wrap gifts, but because of some defect in my motor skills, I can never COMPLETELY wrap them. I can take a gift the size of a deck of cards and put it in the exact center of a piece of wrapping paper the size of a regulation volleyball court, but when I am done folding and taping, you can still see a sector of the gift peeking out. (Sometimes I camouflage this sector with a marking pen.) If I had been an ancient Egyptian in the field of mummies, the lower half of the Pharaoh's body would be covered only by Scotch tape.
On the other hand, if you give my wife a 12-inch square of wrapping paper, she can wrap a C-130 cargo plane. My wife, like many women, actually LIKES wrapping things. If she gives you a gift that requires batteries, she wraps the batteries separately, which to me is very close to being a symptom of mental illness. If it were possible, my wife would wrap each individual volt.
My point is that gift-wrapping is one of those skills - like having babies -- that come more naturally to women than to men. That is why today I am presenting:
GIFT WRAPPING TIPS FOR MEN
1. Whenever possible, buy gifts that are already wrapped. If, when the recipient opens the gift and neither one of you recognized it, you can claim that it's myrrh.
2. The editors of Woman's Day magazine recently ran an item on how to make your own wrapping paper by printing a design on it with an apple sliced in half horizontally and dipped in a mixture of food coloring and liquid starch. They must be smoking crack.
3. If you're giving a hard-to-wrap gift, skip the wrapping paper! Just put it inside a bag and stick one of those little adhesive bows on it. This technique creates a festive visual effect that is sure to delight the lucky recipient on Christmas morning. Let's listen in:
WIFE: Why is there a Hefty trash bag under the tree?
YOU: It's a gift! See? It has a bow!
WIFE (peering into the trash bag): It's a leaf blower.
YOU: Gas-powered! Five horsepower!
WIFE: I want a divorce.
YOU: I also got you some myrrh.
To wrap things up (no pun intended), remember that the important thing is not what you give, or how you wrap it. The important thing, during this very special time of year, is that you save the receipt!
The Theory Of Punitive Damages Gets A Christmas Facelift
You may be sitting back in the quiet ease of the holidays, thinking about heading back to work next week, but as you are, cases continue to be decided and there are a few out there that may have major impact next year. As just one example, we've become somewhat comfortable with the concept that punitive damages can't be more than nine times compensatory damages, and in most instances restricted to three times compensatories. That changed just before Christmas Eve, and along with the Fifth Appellate District, you may be surprised to learn that the California Supreme Court doesn't think the theory of punitive damages is so restricted any longer.
They believe instead that punitive damages can reflect an award that includes punishment for the damages other Californians suffered as a consequence of the practice that resulted in damage to the particular plaintiff. In other words, we may be much closer to life as it existed before the U.S. Supreme Court issued its restrictive punitive damages guidelines in State Farm and BMW v. Gore.
A lot closer it appears. When the heading to a section is entitled, "The Weight of 'Scope and Profitability' In Determining Reprehensibility" appear in an opinion (scroll down to page 10), you sit up and notice.
In our case, Ford apparently established and regularly used fairly restrictive interpretations of California's Lemon Law in order to save approximately $10,000 per vehicle on cars that would otherwise qualify as a lemon, as the Plaintiff's Ford Taurus did. In its prior life with the previous owner, it suffered numerous problems with its transmission, including locking in low gear on the freeway.
Just as a side note here, given the average speed on a California freeway, low gear might not be as much of a problem as you would imagine. But I jest about a situation that was likely very dangerous, and as you read the opinion linked above, was not disclosed to the subsequent owner, Plaintiff in this case. In the trial court, the jury awarded just over $17K for the Plaintiff's damages from the lemon, and $10 million - some 560 times the compensatory award - to punish Ford. Not surprisingly, Ford appealed and got the damages reduced to $53,435.00.
Then also not surprisingly, Plaintiff appealed, but most surprising of all, the California Supreme Court reversed with instructions to modify upward the punitive damages award from the lowered amount, based on Ford's reprehensible conduct in developing a scheme to avoid California's lemon law. The court of appeals did, and awarded $175,000, or 10 times the original compensatory award.
While not particularly riveting compared to the $10 million punitive verdict, there's a lesson here. The appellate court said there wasn't enough of a record establishing Ford's pattern of conduct to award more. Careful plaintiff's attorneys will read this opinion and work to establish such a record in future cases. Trial judges will evaluate those records and may be forced to allow them into evidence. Defense attorneys, on the other hand, will have to be on the lookout. Companies may want to consider publishing such restrictive guidelines in manuals, as Ford did here.
Now you can flip the TV back to the "Grinch Stole Christmas," (link has sound) or just read a few more court opinions.
Law Firm Partnership Agreements Upheld Against Fee-splitting Allegations
If you run a law firm, you might want to be aware of this case. There's some language in it that you might want to add to your partnership agreements, now that it's been blessed by the Courts. Seems that an attorney signed a partnership agreement that acknowledged his law firm invested substantial resources to develop its client base. At the same time, he agreed that if he left, then he would pay 25% of income derived from the firm's clients that went with him to his new firm.
A definite disincentive to leave with clients, and protective of the firm's investment.
The Court that reviewed the provision, here in part of its glory, thought it was reasonable (and a host of other reasons), despite the attorney's position that it was an unlawful fee-splitting arrangement:
The Court pretty much took the attorney to task for violating the agreement with his partners: "Having accepted the benefits of his bargain, [the attorney] will not now be heard to complain that he ought to escape its burdens." It wasn't Christmas for everyone, which is the case in most disputes.
Redevelopment Housing Projects Not Subject To Prevailing Wage Law
Developers will be pleased to learn that housing developments built under the auspices of a Redevelopment Agency do not constitute "public works" that subject them to the the prevailing wage law. Greystone Homes, Inc. bid on a job to "redevelop the 'Cleveland Triangle' area in Pleasant Hill, a 7.5 acre site consisting of 29 separate parcels of property. Redeveloping this site, located within the “Schoolyard Redevelopment Project Area,” was part of the Agency’s general plan to use its financial resources and administrative powers to stimulate private development and help improve the economic base of the project area and community," according to the Court.
The California Director of Industrial Relations ruled (and the trial court agreed) that because Greystone was building homes for a government agency and in part receiving the benefits of tax-increment financing, then it was a "public work," requiring Greystone to pay prevailing wages. Greystone and the Pleasant Hill Redevelopment Agency appealed.
The Court of Appeal reversed, disagreeing with the DIR. If you're a developer either involved with a redevelopment project or considering getting involved, then read this case carefully - it's highly fact-specific, and there's a right way to accomplish this end, as well as a wrong way. Essentially, the Court ruled (based on a earlier case) that the use of redevelopment agency funds to reimburse the developer for land acquisition costs did not constitute payment for “construction,” triggering the prevailing wage law. Since Greystone paid all demolition and construction costs with private funds, the project wasn't a public work.
More Prop 65 Cases SettleProp 65 News announced today (subscription required) that Plaintiff Russell Brimmer has settled another of his ceramic mug cases that alleged violation of Proposition 65, bringing his total to 25. I wonder if that makes him a vexatious litigant?
New Legal Talk Show To Hit Airwaves Next Year
There's another legal radio show that's about to hit the airwaves, and on January 6, 2006, you may want to tune in to AM 1150 if you're in the LA area. Steve Murphy, the broadcaster who puts together SkyNews Radio, will be the host of Legal Live Talk Radio Show.
Disclaimer here: "The Law Business Insider," one of Steve's businesses, is an advertiser here on MIPTC.
DNA Divorce Vows: Test Me, Test You, Test The Children. What's Next?
In the second of an unplanned, two-part series on family law, MIPTC offers you "divorce vows."
That's right. If you're a Dad when you get divorced, you might want to consider this vow, recommended by the Florida Court of Appeals: "test now, or forever hold your peace," even if you think you are the father. It could end up costing you years of child support payments for a child you didn't father.
According to the Law.com article linked above, written by Carl Jones, Florida residents "Richard and Margaret Parker were married in June 1996, and Margaret gave birth to a child in June 1998. In December 2001, the couple agreed to a divorce settlement, obligating Richard to pay $1,200 per month in child support. Throughout the marriage, Margaret told Richard the child was his, and repeated that claim in front of the judge during the divorce proceedings.
Ouch. To add insult to injury, when Richard petitioned the Court to end his child support payments, the court denied his request as too late.
In fact, this vow appears to be of value not only in Florida, but also in Pennsylvania (subscription required). In that case, a father who waited eight years to seek a paternity test waited too long. The court there denied his request, too, in the case where the child is now nine.
Now when you get divorced, in addition to resolving issues over property, spousal support and bank accounts, you may want to consider including DNA tests for you and other family members.