The Marin Lawyer June 2020 by Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER June 2020 Editor Robert Rosborough Guest Editors Greg Brockbank, Chris Locke, Karthik Raju, Nestor Schnasse Creative Director Kiersten Ross

2020 Officers President Susan Feder President Elect J. Timothy Nardell Secretary Scott Buell Treasurer Robert Rosborough Past President Charles Dresow 5 Year Past President Matthew White Board of Directors 2020 Directors Marie Barnes Gregory Brockbank Chelsea Heaney Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah Léger G. Kelley Reid 2022 Directors Emily Charley Kristine Cirby Christopher Locke Ann Munene Karthik Raju Executive Director Mee Mee Wong

Communications Director Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org © 2020. All Rights Reserved.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS P6

Editor’s Introduction: Law at the Center of Crisis Upon Crisis

ROBERT ROSBOROUGH

President’s Message: Repairing Our World One Step at a Time

SUSAN FEDER

P11

COVID-19 Based Travel Restrictions: Going Too Far?

KARTHIK RAJU

P17

The COVID-19 Pandemic and Force Majeure

DANIEL J. SCHNEIDER

P20

The Winding Trail Home: Marin County Secures Key Multi-Use Trail Access Decision

DAVID LAZERWITZ

P23

15 Key Workforce Considerations for Business Reopening

WILMERHALE

P31

CDC Guidance for Employers Reopening Into a COVID-19 World

WILMERHALE

P35

Overcrowding and COVID-19

DAVID EDMONDSON

P38

Batteries, Bankruptcies and the Future of Renewable Energy

CHRIS LOCKE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS P42

Will Insurers Be Subsidizing Your Next Meal at the French Laundry? Business Interruption Claims Amid the COVID-19 Pandemic DANIEL J. SCHNEIDER

P46

Will the Constitution’s Contracts Clause Doom the French Laundry?

DANIEL J. SCHNEIDER

P48

Proving Santayana: Pale Rider's History of the 1918 Spanish Flu Shows How Little We Remember CHARLES DRESOW

P53

Center for Volunteer & Nonprofit Leadership: Helping Nonprofits Help Others

NESTOR SCHNASSE

P55

The Brockbank Political Report: March Primary Results and a Preview of the November Election: Musings on the Longest Local Ballot Ever and Party Prospects in Sacramento and D.C. GREG BROCKBANK

P64

Director Spotlight: Emily Charley

THE MARIN LAWYER

P66

Webinar Recap: Family Court Update on COVID-19 Response

KRIS CIRBY

P72 P73

Upcoming Events A Note About MCBA’s Upcoming Events

THE MARIN LAWYER

P75

New Members

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

EDITOR’S FAIRINTRODUCTION HOUSING Law at the Center of Crisis Upon Crisis ROBERT ROSBOROUGH

hen I wrote my introduction for the last Marin Lawyer, the world was a different place.

We had originally planned the theme for this issue to be the environment. As SARS-CoV-2 (the official name for the novel coronavirus) made its way around the world, articles relating to the virus seemed a natural extension of our theme. And when sheltering in place separated us not only from our colleagues but from much of our ordinary lives, there seemed to be little else to talk about besides the virus. Hence we bring you an issue mostly about the pandemic and just a few of the many unusual legal issues it raises. Not long before publication, already in the midst of one crisis, society lurched into another, this one triggered by the latest manifestation of an epidemic going back centuries: racist violence. The murder of George Floyd seems cataclysmic. I hope so. Because we

need to change. Be sure to read Sue Feder’s President’s Message spurring us to action. Our September issue’s theme is criminal justice and I suspect the content will not be what we imagined a few months ago. Just last month, who would have thought the Insurrection Act of 1807 might be a topical article for the Marin Lawyer? We do have a couple of articles on traditional

environmental fare: Chris Locke fills us in on the state of renewable energy and David Lazerwitz recounts a quintessentially Marin CEQA case stemming from adapting Marin’s trails for multiple uses. We have quite a few articles addressing practical aspects of the pandemic that may arise for your clients or even for your own business. (Speaking of your own business: if the imminent shelter-in-place orders distracted you from our March law practice management issue, it contains many articles on practical aspects of running a solo or small firm.) When was the last time you thought about force majeure? Daniel Schneider gives us a primer on force majeure clauses and the likelihood of invoking them because of the pandemic. He also teaches us something about business interruption insurance, where famed chef Thomas Keller is leading the charge

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

for pandemic coverage. The prolific Mr.

Pale Rider, a book about the 1918 Spanish Flu

Schneider ventures into slightly more academic territory with a discussion of the Con-

pandemic and the many things it has to teach us for today (and the importance of history).

stitution’s Contracts Clause—which may actually have a very practical effect on the relief

Then meet Emily Charley, one of MCBA’s newest directors. And ponder political col-

many business owners may get.

umnist Greg Brockbank’s usual astute observations about the results of our local March

What not long ago might have been a very academic topic is now one arising in a variety of practical contexts: travel restrictions. Karthik

Raju explores what states and local jurisdictions can and cannot do—some of the answers may surprise you. David Edmondsonteaches us about the difference between density and crowding and its relevance for the spread of COVID-19 and for urban planning in Marin. The pandemic has elevated many once obscure laws and legal doctrines to the forefront of the legal landscape. Some of

them may have less relevance to your everyday life than others, but they are often fasci-

primary and the potential dynamics of the upcoming state and national elections. And finally, Nestor Schnasse profiles the Center for Volunteer and Nonprofit Leadership, which provides services needed now more than ever. I’d like to thank this issue’s guest editing team: Karthik Raju, Nestor Schnasse, Chris Locke and Greg Brockbank. The law plays a central role in so many facets of our current crises. If you have something you’d like to read or write about for the September issue, let me know! View this article at Marinbar.org

nating. If you’d like to read—or better yet, write—about topics like election laws (can you say, “Wisconsin primary”?), please get in touch with me. Returning to the eminently practical, teams of lawyers from WilmerHale bring us highly in-

formative articles on reopening workplaces, one with lots of great advice about the many

Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL | WEBSITE

things to think about and do when reopening and another with a primer on the CDC’s guidance for reopening, including for office buildings. These are worth checking out even if you are just curious about your own workplace. Be sure to read Charlie Dresow’s review of THE MARIN LAWYER An Official Publication of the Marin County Bar Association

BASF’s list of organizations that need our help: Black Lives Matter: Fighting to end State-sanctioned violence and white supremacy. George Floyd Memorial Fund: The official GoFundMe, which goes straight to Floyd’s family. The Bail Project: Preventing incarceration and combatting racial and economic disparities in the bail system. NAACP Legal Defense Fund: America’s premier legal organization fighting for racial justice. Campaign Zero: The comprehensive platform of research-based policy solutions to end police brutality in America.

Bay Area organizations that need our help: Black Earth Farms: Delivering free food to Black people who have been arrested, bailed and injured from protests. National Lawyers Guild San Francisco Chapter: Running a hotline and providing pro bono legal support for arrestees in the Bay Area. People’s Breakfast Oakland: Providing meals and packages to houseless communities in Oakland.

If You Are Demonstrating: ACLU: Know Your Rights While Protesting Police Brutality The Legal Aid Society: What You Need to Know About Protesting NYPD Brutality

Education on Police Brutality: Dr. Phillip Atiba Goff TED Talk: How We Can Make Racism a Solvable Problem—And Improve Policing Olivia B. Waxman in TIME magazine: How the U.S. Got Its Police Force Watch on Netflix: Ava DuVernay’s Documentary,13th, on the criminalization of African Americans and the U.S. prison boom

Support Organizations Tackling Racial Injustice: Black Visions Collective Equal Justice Initiative Showing Up for Racial Justice THE MARIN LAWYER An Official Publication of the Marin County Bar Association

PRESIDENT’S MESSAGE FAIR HOUSING Repairing Our World One Step at a Time SUSAN FEDER

his month’s Marin Lawyer theme began

seconds, nearly three of which were after

as “the environment,” and after the arri-

Floyd lost consciousness. A bystander’s video

val of COVID-19, fittingly evolved to be pri-

captured the horrific act for all the world to

marily about the pandemic. For my monthly

witness.

message, I planned to write about the unin-

tended, and sometimes positive, impact of the pandemic and shelter-in-place orders on environmental health. Then, several days before this writing, as has happened so many times before, a horrific video spread across the internet. Who would have thought possible that we would witness actions even more disturbing than so many times before? Images of the murder of George Floyd stunned the country. Peaceful protests have been followed by violence and destruction across the United States. At the very moment when we were beginning to feel hopeful—glimmers of the pandemic loosening its grip—we are now facing another challenge from an epidemic that has gone on far, far longer than this, or any previous coronavirus. On May 25, an employee at a Minneapolis deli called 911 to report that an African-American man bought a pack of cigarettes with a counterfeit $20 bill. Seventeen minutes after the first squad car arrived, George Floyd was unconscious, with no signs of life. He died after a Minneapolis police officer held a handcuffed and prone Floyd down with his knee to Floyd’s neck for a total of 8 minutes and 46

Law enforcement authorities across the country unanimously condemned the actions in the video. As stunned as many of us were, we were sadly not shocked at yet another video of such brazen cruelty. Racism and injustice have always been part of our nation’s history. Our society and criminal justice system remain plagued by systemic racism and inequality. As much as we know injustice and inequality exist, it is easy to feel powerless in the face of such an overwhelming problem. Videos like these can reinforce that powerlessness. Or they can spur us to action. As lawyers, we naturally seek to right wrongs and prevent injustices. We are tasked with the protection of constitutional rights. We feel the need acutely to make our society

more just and fair. Governor Gavin Newsom stated that, “The black community is not responsible for what's happening in this country right now, we are.” All of us have an obligation to expose and eliminate systemic racism in our institutions, organizations and businesses. How? President Obama recently suggested that lawful protest is only the first step in

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

promoting reform. Our voices also need to be

and the resulting anger, frustration and vio-

heard in voting booths and through political engagement at all levels of government.

lence gripping our country.

Obama reminded us that because change often begins at the ground level, we need to make our voices heard in local elections— where lawmakers directly responsible for local political reform are elected. Sadly, local elections have been experiencing historically low turnout, especially among younger voters. They are a vital step in social and criminal justice reform. So, one thing we can do is vote. And help get out the vote, especially in com-

I believe that by choosing to act, rather than simply observe, we will feel empowered and begin to heal. In Hebrew, the phrase Tikkun Olam signifies performing acts of kindness to repair the world. Often used in the context of repairing our physical environment, today these words call upon us to repair our social

and political environment as well. We must respond to the call, and we can do it better together.

munities where voting rights are threatened, which is perhaps everywhere today.

Stay well, stay connected, and stay engaged,

Another thing we can do is volunteer our time

View this article at Marinbar.org

Sue

and our expertise to individuals and organizations that promote social justice. Reach out to

MCBA’s Pro Bono Committee to see how you can help. Or check out the Marin Pro Bono Network to match your skills and interests with communities in need. And, of course, we can help by providing financial support to front-line organizations. The Bar Association of San Francisco has created a list of several national and local groups

Susan has been a full-time mediator since 2010, and is on the panel of Judicate West statewide. She uses insight and intuition to bring a fresh and creative approach to reaching settlement. Before becoming a mediator, Susan was a business litigator with a national law firm and practiced in house as litigation counsel for Bank of America. Susan’s mediation practice covers a wide variety of cases, including tort, employment, real estate matters and commercial litigation. When negotiating a settlement, Susan focuses on uncovering the issues fueling the dispute, and redirecting the parties towards resolution and finality. Susan is the MCBA President for 2020. EMAIL | WEBSITE

that are in need of our help, which we reproduce below. These have been difficult months. We have been coping with the reality of a global pandemic and its effects on our physical, emotional and financial health. It has wreaked havoc on our daily lives and our businesses. Against this backdrop, we must now grapple with the shock of witnessing a brutal killing, THE MARIN LAWYER An Official Publication of the Marin County Bar Association

TRAVEL FAIR RESTRICTIONS HOUSING COVID-19 Based Travel Restrictions: Going Too Far? KARTHIK RAJU

Photo Credit: formulaone

s governments work to limit the spread

strictions and obligations on out-of-state

of the COVID-19 virus, we have adjusted to closed shopping malls and restaurants,

travelers. To a lesser extent, even some local governments have enacted bans that serve to

avoiding social gatherings, and limiting our everyday travel. Indeed, most of us have lim-

exclude visitors. Just like the international restrictions, the purpose of these inter- and in-

ited all of our travel. But what if we didn’t? Most of us aren’t surprised that we can’t fly to

tra-state travel restrictions is to reduce the spread of infection, but they represent an ex-

certain countries or that the U.S. is prohibiting travel from others—Brazil being a recent

traordinary assertion of state and local police powers, and raise fundamental constitutional

addition to that list. But what about travel within the United States? Can other states

considerations.

keep us out? Other cities? The answers may not be what you think.

Some states have recently imposed re-

Recent Interstate Travel Restrictions In late March, as the number of COVID-19 cases in New York was rising quickly, Rhode

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Island Governor Gina Raimondo signed an ex-

utive order issued during a state of emergen-

ecutive order authorizing the state police and

cy subjects a defendant to fines and jail. A

National Guard to stop any vehicle displaying

Rhode Island statute creates a similar

New York plates. The order was quickly

scheme.

amended to include vehicles with any out-ofstate plates, seemingly to avoid a discrimination challenge. Any out-of-state resident is required to provide their contact information and self-quarantine for fourteen days if they intend to remain in the state. Violators are

subject to fines and/or being arrested and

It is well established that states have expansive powers to regulate for the health, safety, and general welfare of their citizens. Police powers are rooted in the Tenth Amendment to the United States Constitution, which reserves to the states those, “powers not dele-

charged.

gated to the United States by the Constitution.” For instance, the power of states to im-

In Florida, officials noticed increased travel from the New York-New Jersey-Connecticut

pose mandatory quarantines has long been recognized. Indeed, as far back as 1824, Chief

tri-state region as infection numbers in those states grew. Governor Ron DeSantis ordered

Justice Marshall wrote in Gibbons v. Ogden that the power to quarantine, “flow[s]

checkpoints on interstate I-95 at the Georgia border where travelers from those states

from the acknowledged power of a State, to provide for the health of its citizens.” (Gibbons

whose destination is Florida are directed by

v. Ogden (1824) 22 U.S. 1, 205.)

law enforcement to self-quarantine for fourteen days. The restriction was soon amended to include travelers from Louisiana as infection rates there spiked. Violators of DeSantis’ executive order face punishments of up to 60 days in jail and a $500 fine. Texas Governor Greg Abbott issued similar orders.

It is axiomatic, however, that regulations imposed by a state to protect the health and welfare of its citizens must not run afoul of constitutional protections. A state’s exercise of police powers in moments of emergency are more likely than usual to implicate fundamental civil liberties concerns. Restrictions on

Sources of State Power

travel certainly do.

Broadly speaking, the authority for a gover-

The Legality of Interstate Travel Restrictions

nor to issue an executive order derives from state constitutions, statutes, and caselaw. Executive orders are generally said to carry the full force and effect of legislated law, and provide for specific sanctions when an order is violated. In Florida, for instance, Florida Statute 252.50 provides that violation of an exec-

A state cannot normally prohibit entry to residents of other states. In the landmark case Edwards v. California (1941) 314 U.S. 160, the U.S. Supreme Court ruled unconstitutional a California law that prohibited bringing a non-resident “indigent person” into the state. The Court held the law violated the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Commerce Clause because, “the transporta-

power to refuse entry despite there not being

tion of persons is ‘commerce,’” and the law

a single infected passenger aboard the ship.

unduly burdened the free movement of com-

Accordingly, it seems evident that some trav-

merce across state lines. (Id. at p. 172.) At-

el restrictions during an epidemic will not be

tempts to restrict travel among states may

found to be per se unlawful.

also run afoul of a person’s substantive right to travel and the Privileges and Immunities clause of the Constitution. But courts have ruled the right is not without limits, particularly in the face of a public health emergency.

The Supreme Court has affirmed the power of states to place restrictions on entry by nonresidents owing to a disease outbreak and has consistently affirmed the quarantine powers of state governments. Indeed, the Court has written that a state, "may exclude from its limits…persons afflicted by contagious or infectious diseases.” (Railroad Co. v.

Vehicle Stops Under the Fourth Amendment As noted earlier, travel restrictions may implicate other constitutional rights beyond the right to travel, such as the Fourth Amendment’s right to be free from unreasonable searches and seizures. To comply with individuals’ Fourth Amendment protections when conducting traffic stops, a law enforcement officer must have at least reasonable suspicion that criminal activity is afoot. Thus, an officer has enough cause to make a stop where he observes a crime in progress – a hit

Husen (1877) 95 U.S. 465, 471.)

and run, for example. State laws allowing officers to stop out-of-state drivers absent any

The specific issue of refusing entry to visitors in the midst of a pandemic was addressed

indication of criminal activity are of particular concern to civil rights advocates.

in Compagnie Francaise de Navigation à Vapeur v. Louisiana State Bd. of Health (1902) 186 U.S.

In Rhode Island, the American Civil Liberties

380. There, the Supreme Court upheld the power of Louisiana to refuse entry to ship passengers who had traveled from abroad and were attempting to disembark during a yellow fever outbreak in the state. The Court ruled “beyond question” that, “state quarantine laws and state laws for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce.” (Id. at p. 387.) Notably, the Court upheld the State’s

Union argued that the state was acting unconstitutionally in stopping vehicles where no crime had been observed. In a March 26th statement, the organization wrote, “under the

Fourth Amendment, having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be.” The ACLU called for the Rhode Island Governor to rescind her order, but it took no legal action. The organization states that, “because the police do not ask for ID at the stops, have

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

disavowed any attempt at law enforcement

incoming travel from not only out-of-state

during them, and take no action against driv-

residents, but also travel from in-state resi-

ers who refuse to provide information, the

dents whose primary residence is outside the

ACLU has held off on taking any legal action

county. These restrictions represent the as-

for the time being.”

sertion of power by local municipalities to en-

Beyond the power to quarantine, there is little case law weighing the implications of a public health crisis on Fourth Amendment

act their own pandemic restrictions and in so doing to restrict intrastate travel. In California, shelter-in-place orders have

rights. In response to a challenge as to the lawfulness of stopping out-of-state vehicles,

been instituted at both state and local levels. In fact, seven bay area counties ordered resi-

states might argue that an out-of-state license plate provides an officer sufficient indi-

dents to stay at home days before the State issued its own order. Counties and municipal-

vidualized suspicion to believe a driver has been out of state and thus subject to the

ities derive their power in large part from the California Constitution, which provides, “A

state’s quarantine order. However, one might well respond that the state could accomplish

county or city may make and enforce within its limits all local, police, sanitary, and other

its goal of advising drivers of the quarantine by less intrusive means such as posting signs

ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI § 7.) To

at the state border. States might also defend

the extent there have been conflicts between

any challenges on the grounds that stopping

competing orders, state and local govern-

vehicles with out-of-state plates is not an un-

ments seem to be working cooperatively. In

reasonable seizure where the state is acting

Santa Clara, county counsel advised, “I want

pursuant to its broad police powers to protect

to remind everyone that we must all abide by

the health and welfare of its citizens during a pandemic. With the nation currently easing

all the local health orders and the state health orders. That means whichever is stricter, in

pandemic restrictions, we may not see development of caselaw in this area anytime soon.

some cases that is the state order.”

Local Travel Restrictions

El Dorado County, local officials banned all

Some state governors have encouraged – but

non-essential travel into the South Lake Tahoe basin from non-local residents. The

not required – residents of harder hit cities within their own state to avoid travelling to less affected regions of the state. Examples include Gov. Mike Dunleavy of Alaska and Gov. Phil Murphy in New Jersey. But several local governments have sought to restrict

As travelers flocked to their second homes in

County stated that preserving limited local medical resources along with virus containment were the objectives for the ban. In particularly blunt language, the County’s order provided that travel, “for owners to occupy their second homes for recreation or

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

vacation…is non-essential” and therefore pro-

acknowledged the absence of local authority

hibited. However, County officials explicitly

to mandate the restrictions. However, Cuomo

acknowledged the evident constitutional con-

strongly rejected these demands, although

cerns in denying homeowners access to their

not on stated legal grounds. Instead, he ar-

properties. Accordingly, South Lake Tahoe

gued, "I don't like it socially or culturally," and

officials have not taken enforcement action

"I don't like what it says of us as one state.”

against any second homeowners, but they have fined several people for nonessential travel into the region.

Just as with interstate travel, as states and localities reduce pandemic-related re-

In the Outer Banks of North Carolina, the

strictions, we may not see any new intrastate limitations or resulting caselaw. However,

Dare County Control Board, a local emergency management governing body, issued a

should infections spike, less impacted regions are likely to adopt new local travel re-

highly restrictive declaration preventing noncounty residents from entering. Checkpoints

strictions. County and municipal governments certainly possess their own powers to

were established, and only those who displayed a North Carolina state ID with a Dare

regulate for local welfare. But when such regulation impinges on property or travel rights,

County address were allowed entry. Access was denied even to some local homeowners

we are likely to see more court review the longer these limitations are in effect.

because they proffered ID with an out-ofcounty primary residence. Non-resident property owners soon filed a federal suit alleging infringement of the right to travel “in the State of North Carolina” and other constitutional violations. The County subsequently relaxed the restrictions and the case was continued as both sides agreed to mediate the dispute. Apart from legal considerations, some governments have expressed concern about the implications of proposed intrastate travel bans on the perceived unity of the state. Local officials from counties in upstate New York and eastern Long Island implored Governor Andrew Cuomo to ban non-essential travel from New York City residents. In calling on the Governor to act, local officials implicitly

Looking Ahead It is uncertain how much longer states and local governments will maintain their remaining restrictions that impact travel between and within states. With caselaw that supports a state’s power to impose quarantine and to impose at least some additional travel limitations intended to contain the spread of com-

municable disease, it seems reasonable to believe that tailored and time-limited restrictions that impact travel between states would be upheld. Local orders that build upon state orders have imposed additional and significant restrictions in some places. Local and state orders affect a vast number of people across the country and implicate deeply rooted civil liberties. The longer these restrictions

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

remain in effect, the more they demand judi-

an Epidemic, The Volokh Conspiracy Blog

cial scrutiny. That said, noted constitutional

(Apr. 4, 2020), https://reason.com/2020/04/04/

law professor Eugene Volokh of UCLA’s

restrictions-on-interstate-and-intrastate-travel-in-an-

School of Law has opined that some forms of

epidemic/?utm_source=dlvr.it&utm_medium=twitter.)

travel restrictions are likely to withstand

View this article at Marinbar.org

scrutiny, “based on the general thrust of the cases—coupled with the fact that judges likely don't want to deny government officials the temporary tools they need to stave off likely

Karthik Raju is a Deputy Public Defender at Marin County Public Defender and is a Board Director for the Marin County Bar Association. WEBSITE

tens of thousands (or more) deaths in this ex-

traordinary time....” (Eugene Volokh, Restrictions on Interstate (and Intrastate) Travel in

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

FORCE MAJEURE FAIR HOUSING The COVID-19 Pandemic and Force Majeure DANIEL J. SCHNEIDER

he COVID-19 pandemic is having a cata-

demic is a novel issue which will certainly

strophic impact on the U.S. economy—by

reach the courts in short order. In the interim,

some estimates, four trillion dollars. It is di-

California law provides support for finding

rectly affecting millions of business relation-

that the pandemic triggers at least some force

ships governed by contract, lease or other

majeure clauses.

agreement. With performance under many of these contracts becoming impossible or im-

Force Majeure Clause Basics

practicable, a historically seldom-used provision is suddenly at the forefront of many lawyers’ minds: The force majeure clause. Even for lawyers, its name may seem more fitting as the title of a war film than a contract provision. However, where present, its legal effect could be dramatic. Readers will no doubt recall that force majeure is a legal doctrine implicated when extreme unforeseen events, beyond the control of the parties, make performance under a contract impossible or truly impractica-

Force majeure literally translated from French means “superior force.” The legal concept, as defined by Black’s Law Dictionary, is “an event which can neither be anticipated nor controlled.” Black’s further defines a “force majeure clause” as a “contractual provision allocating the risk of loss if performance becomes impossible or impracticable, esp. as a result of an event or effect that the parties could not have anticipated or controlled.” In California, “The test is whether under the particular circumstances there was

ble. Typically, only a limited number of events qualify, such as tornados, hurricanes, and other natural disasters; war; rioting; labor strikes; and/or terrorist attacks. Whether force majeure applies to the COVID-19 panTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

such an insuperable interference occurring

Inc. v. Rhone-Poulenc Rorer, Inc. (C.D. Cal.

without the party's intervention as could not

2001) 178 F. Supp. 2d 1099, 1111 (zoning is-

have been prevented by the exercise of pru-

sues causing shutdown did not count as force

dence diligence and care.” (Pac. Vegetable Oil

majeure).)

Corp. v. C. S. T., Ltd. (1946) 29 Cal. 2d 228, 238.)

While there is no requirement that the condition preventing performance be specifically

However, courts have typically interpreted such clauses to be language-specific and sub-

listed, there is an implied covenant of good faith in every California force majeure clause.

ject to negotiation of the parties. (See, e.g., San Mateo Cmty. Coll. Dist. v. Half Moon

(See Terry v. Atl. Richfield Co. (1977) 72 Cal. App. 3d 962, 964.) Since the typical wording

Bay Ltd. P'ship (1998) 65 Cal. App. 4th 401, 411.) This means if there is no force majeure

of force majeure clauses does not reference pandemics or viral contagions, specific

clause, then none can be implied. Ibid. Thus, without one in the contract under review, the

phrases relevant to COVID-19 that could excuse performance include: (1) “orders or di-

pandemic will not excuse lack of performance, at least under this traditional legal

rectives” by governmental bodies; and (2) catchall provisions that often follow lists of

concept.

specific acts. Such catchall provisions typically excuse performance upon, “any unforesee-

The COVID-19 pandemic is, no doubt, an extreme unforeseen event, beyond the control of any party to any contract. However, as discussed below, epidemics and pandemics are

able causes beyond the reasonable control of the party.” As a matter of contractual interpretation, if a

rarely, if ever, listed specifically in force majeure clauses.

force majeure clause contains only specific events and no catchall, and none of the events

The Narrow Construction of Force Majeure

include health emergencies or governmental orders/directives, that clause will be unlikely

Clauses In addition to courts not implying force majeure clauses, they construe them narrowly: “Under California law, unless a contract explicitly identifies an event as a force majeure, the event must be unforeseeable at the time of contracting to qualify.” (Free Range Content, Inc. v. Google Inc (N.D. Cal., May 13, 2016, 14-CV-02329-BLF) 2016 WL 2902332, at *6.) This is especially true in the governmental action context. (Watson Labs.

to excuse performance because of the pandemic. While omission of such language is rare, one more hurdle exists to the use of catchall language: In addition to only the most extreme events being considered force majeure, California generally adheres to “the canon of construction known as ejusdem generis.” (Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, (1979) 25 Cal. 3d 317, 330-331.)

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

This term literally means “of the same kind.”

by prudence, diligence, and care.” (Horsemen's

The implication is that an unenumerated

Benevolent & Protective Assn. v. Valley Racing

event must be similar to enumerated ones to

Assn. (1992) 4 Cal. App. 4th 1538, 1564.)

qualify.

Thus, if performance under a contract is ren-

Guidance applying the principle of ejusdem generis to force majeure specifically can be found in New York caselaw, which holds: “When the event that prevents performance is not enumerated, but the clause contains an expansive catchall phrase in addition to spe-

cific events…words constituting general language of excuse are not to be given the most expansive meaning possible, but are held to apply only to the same general kind or class as those specifically mentioned.” (Team Mktg. USA Corp. v. Power Pact, LLC (3d Dept. 2007) 41 A.D.3d 939, 942-943.) COVID-19 as Force Majeure There is no doubt that the COVID-19 pandemic is beyond the control of the parties (See Free Range Content, Inc., supra.) And in virtually all cases, it is inarguable that governmental orders and/or directives have driven the impossibility or impracticability of performance. In addition, it seems difficult to argue that the pandemic and the response to it are

not extreme and unforeseeable. Finally, COVID-19 would likely be sufficiently similar

dered impossible or impracticable by COVID19 or any governmental response thereto, and the contract contains a force majeure clause with governmental orders or directives or catchall language (or, of course, health emergencies), there is a strong argument that

performance should be excused. These are unprecedented times, and this seldom-used provision may become more relevant than ever. View this article at Marinbar.org

Daniel J. Schneider is a New York based trial attorney and a Founding Partner at Farber Schneider Ferrari LLP. His practice centers around the real estate arena, representing developers, design professionals, interior designers, contractors and others with a multitude of issues which affect real property and construction projects. This includes, without limitation, property damage, construction defects, personal injury defense, neighbor disputes, corporate disputes, contractual issues and employment issues within the various companies. Mr. Schneider previously practiced in Southern California as General Counsel for an education-based start-up and is on the cusp of expanding his California practice. He opened his firm with his partners and a shared philosophy that good relationships are good business and that efficiency and effective advocacy cultivate a years long attorney-client relationship which spans multiple matters. EMAIL | WEBSITE

to be considered ejusdem generis. (See Sears, Roebuck & Co., supra.) There can be little argument that a society crippling pandemic is a “superior force” of similar severity and impact as other events which are traditionally considered force majeure and “could not have been prevented THE MARIN LAWYER An Official Publication of the Marin County Bar Association

MULTI-USE TRAILS FAIR HOUSING The Winding Trail Home: Marin County Secures Key MultiUse Trail Access Decision DAVID LAZERWITZ

ith Marin County’s Mt. Tamalpais of-

2014 Road and Trail Management Plan

ten considered the birthplace of

(“RTMP”) which, among other things, estab-

mountain biking, it should not be surprising

lished a process for increasing bicycle access

that the County finds itself at the forefront of California’s battle over multi-use trail access

to the County’s large-scale trail network. In 2015, the Marin County Bicycle Coalition

and consequently at the cutting edge of case

(“MCBC”) submitted a proposal to the County

law in this evolving area. Highlighting the

pursuant to the RTMP process, proposing to

front lines of this battle, on January 24, 2020, the California Court of Appeal for the First

open the Bob Middagh Trail to bicycles as an important connector between existing multi-

District handed down a significant decision under the California Environmental Quality

use trails and to provide an alternative to a congested paved road. The County ultimately

Act (“CEQA”) holding that government agencies deciding whether to provide bicycle ac-

approved MCBC’s proposal, finding that the proposed improvements and access fell with-

cess to existing trails are not required to analyze “social effects” such as perceived user

in the scope of environmental impacts analyzed in the County’s Programmatic Environ-

conflict with hikers under CEQA1. The decision in Community Venture Partners v. Mar-

mental Impact Report for the RTMP prepared pursuant to CEQA2.

in County Open Space District (Jan. 24, 2020, A154867) [WL 429110 (unpublished)]

Community Venture Partners (“CVP”) chal-

(hereafter Middagh Trail) reverses a trial court ruling in favor of a non-governmental organization challenging the Marin County Open Space District’s approval of a proposal to open the popular Bob Middagh Trail in Mill

lenged the County’s approval of the proposal on numerous grounds, including an argument

that the County was required to analyze the social effects and safety risks of adding bicycle use on the trail as part of the County’s re-

Valley to bicycle use. in this life.

view of the proposal’s environmental effects under the CEQA process. CVP also raised a

The Middagh Trail decision represents a significant victory for the County because it es-

number of claims challenging the County’s compliance with its RTMP decision-making

tablishes precedent as the first bicycle-access trail approval occurring under the County’s

process. The trial court agreed with CVP on multiple grounds, including a critical finding

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

that the County failed to analyze potential

ers making decisions.

conflicts among trail users under CEQA. The County appealed the decision, joined by ami-

The Court of Appeal reversed the trial court’s

cus curiae MCBC and the California State Association of Counties and League of Califor-

CEQA ruling on several grounds, ultimately holding that the County properly analyzed

nia Cities.

the environmental effects of the Bob Middagh Trail proposal in the context of the

The trial court’s decision garnered widespread interest because it represented a sig-

RTMP Programmatic EIR. Key among the Court’s rulings is its determination that the

nificant expansion of the type of environmental effects analyzed under CEQA and could

County was not required to analyze social effects such as perceived conflicts with other

complicate the process for government agen-

existing trail users under CEQA. As explained

cies to increase bicycle access to existing

by the Court, CEQA does not require an anal-

trails. In essence, the trial court’s decision created a new cat-

ysis of subjective psychological feelings or social impacts be-

egory of environmental effects un-

cause these do not constitute impacts

der CEQA based on perceived

to the physical environment. In this

“social effects” or “user conflict”

regard, the Court refused to expand

which, according to CVP’s argu-

the scope of environmental effects

ments, must al-

analyzed pursuant

ways be deemed significant, there-

to CEQA. While the Court re-

by requiring a new Environmental Impact Report (“EIR”) for any

versed the trial court’s CEQA findings, it did affirm the trial

trail access decision involving bicycles. The trial court’s ruling could also be extended be-

court’s decision that the County did not properly “score” alternate trail proposals sub-

yond bicycle trail access to require an evaluation of social effects of other important but

mitted by other members of the public under its preliminary RTMP evaluation process. The

potentially contentious projects ranging from disabled and low-income housing to high-

Court therefore remanded the matter to the County to address and presumably “re-score”

speed rail and other infrastructure improvements —evaluations that are typically re-

the original proposals, allowing the County to proceed based on the newly selected pro-

served for the elected officials and policymak-

posal pursuant to the Court’s CEQA roadmap

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Bob Middagh Trail. Source: Marin County Parks

once that process is complete.

sue and the counties and cities that must craft

The Middagh Trail decision represents a path

a path forward in accommodating these various interests.

forward for Marin County and other California jurisdictions seeking to open trails to multiple users, including cyclists. Perhaps oddly enough, while the County historically permitted bicycle access on its trail network, such access became restricted over the years due

to lobbying by other trail users who view cycling as incompatible with hiking or equestri-

View this article at Marinbar.org 1

For readers unfamiliar with CEQA, it generally requires state and local government agencies to assess the environmental impacts of their decisions, frequently requiring an environmental impact report analyzing a broad range of effects, such as pollution and traffic. 2 In some cases, CEQA does not require impacts to be assessed when the potential impacts have already been analyzed under a broader earlier decision, such as a decision implementing a particular provision of a previously-approved regional plan.

an use. With the increasing popularity of mountain and gravel cycling, and a younger demographic pursuing such uses, multi-use trail efforts will undoubtedly continue to be a focus of interest groups on all sides of the is-

David Lazerwitz is a partner and Chair of the Energy and Natural Resources Industry Group at Farella Braun + Martel LLP, and represented the Marin County Bicycle Coalition as amicus curiae on a pro bono basis in the Middagh Trail appeal. EMAIL | WEBSITE

Reach a high-profile targeted audience of legal professionals in Marin County. We have ad packages available for all budgets. Website Advertising Digital Magazine Program Sponsor THE MARIN LAWYER An Official Publication of the Marin County Bar Association

BUSINESS REOPENING FAIR HOUSING 15 Key Workforce Considerations for Business Reopening WILMERHALE

n response to the lifting or relaxing of shelter-in-place orders in a number of states,

many businesses plan to resume certain operations during the pendency of the COVID-19 pandemic. The health, safety, and well-being

of employees is paramount, and companies should update or develop their pandemic response operations plans to ensure that work may resume safely. Any resumption of operations must heed to the requirements of federal and state orders and directives. In addition to complying with such requirements, or where no such enforceable standards exist, businesses should consider the recommendations and guidance issued by relevant government entities and public health agencies. While reopening plans are inherently workplace and location specific, certain overarching workforce considerations should inform both the drafting of such plans and broader decision-making by management and boards. Below is a list of 15 key legal considerations for employers that are planning to reopen their businesses. This list is non-exhaustive and focused on issues related to personnel policies, worker safety, regulatory compliance, and privacy. Employers should ensure that reopening plans are tailored to their workplaces and updated to reflect emerging developmentsâ&#x20AC;&#x201D;in particular, municipal and state orders and announcements applicable

to their facility locations. 1) Reopening task force: A companyâ&#x20AC;&#x2122;s reopening taskforce should be comprised mainly of the same people charged with developing and implementing its COVID-19 response plan. This team would be prepared to communicate new protocols to employees and answer any pandemic-related questions that may arise. 2) Social distancing: Employers must implement social distancing measures that are consistent with state and local requirements as well as industry best practices. Such measures should include those designed to maintain six feet of distance between workers; implementing staggered shifts; closing common areas and breakrooms; and prohibiting handshaking and other unnecessary person-to-person contact. Retail businesses should take additional precautions such as designating with signage, tape, or by other

means six-foot spacing for employees and customers to maintain appropriate distance, including in lines; installing protective screens or other mitigation measures where workercustomer interactions are likely; limiting the number of customers in the facility at any one time; implementing separate operating hours for elderly and high risk customers; and adopting contactless payment systems

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

whenever possible.

of respiratory protection and may choose

3) Workplace cleaning and disinfect-

whether to make wearing of such equipment mandatory (in the case of a recognized hazard

ing: Companies should implement enhanced housekeeping practices, which include cleaning and disinfecting frequently touched surfaces, tools, equipment, and other elements of the work environment as appropriate, consistent with guidance issued by the Centers

in the workplace) or voluntary (taking into account the CDCâ&#x20AC;&#x2122;s April 3rd recommendation that cloth masks should be worn in public and in areas where social distancing is difficult).

for Disease Control and Prevention (CDC)

5) Self-reporting of COVID-19 symptoms or

and the U.S. Environmental Protection Agen-

exposure: If not already required by state or

cy (EPA). Specifically, disinfection should be

local order, employers should develop a poli-

conducted using products meeting EPAâ&#x20AC;&#x2122;s cri-

cy to address whether and how employees

teria for use against SARS-CoV-2, the virus

should notify the company if they test posi-

that causes COVID-19, or identified equiva-

tive for COVID-19, learn they have been ex-

lents.

posed to COVID-19, and/or are exhibiting

4) Personal Protective Equipment: In workplaces where PPE is not already required, companies should develop a nondiscriminatory policy governing employee use

COVID-19 symptoms (including coughing, fever (100.0 or higher), shortness of breath or difficulty breathing, or a combination of early

symptoms such as chills, body aches, sore

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

throat, headache, diarrhea, nausea/vomiting,

cautioned that, for a variety of reasons

loss of smell, and/or runny nose). Additionally, a developing best practiceâ&#x20AC;&#x201D;and a require-

(including the fact that testing is not 100% accurate), COVID-19 testing is not a substitute

ment in certain jurisdictionsâ&#x20AC;&#x201D;is to require employees to self-certify, prior to entering

for taking other protective measures at a work site.

the workplace, that they do not have a fever or other symptoms of COVID-19, have not to

7) Employee exhibits symptoms at

their knowledge been in close contact with someone who has recently contracted

protocol to address instances of employees

COVID-19, and have not been advised by a doctor or health agency to self-isolate or quarantine.

work: Employers must have an established exhibiting COVID-19 symptoms at work. Any

employee who is feeling ill or is exhibiting COVID-19 symptoms should be immediately separated from the rest of the staff and

Some jurisdictions have mandated that em-

moved to a company-designated isolation ar-

ployers administer on-site temperature

ea. The employee should be given a mask and

checks before allowing employees to enter

protective gloves as soon as practicable, and

the work facility. Such a practice is more in-

arrangements should be made for the em-

volved than self-reporting from a compliance

ployee to return home or go to a nearby

perspective, and counsel should be involved

health center, if circumstances dictate. Guid-

in developing a protocol to conduct on-site screening.

ance from the CDC and local health departments, if applicable, should be consulted to

6) COVID-19 testing: Updated guidance is-

inform cleaning and disinfecting protocols.

sued by the Equal Employment Opportunity Commission (EEOC) on April 23, 2020, indi-

8) Returning to work after illness: Employers also should issue clear policies explaining

cates that an employer may choose to administer COVID-19 testing to employees before

when an employee may return to work after experiencing symptoms associated with

they enter the workplace. The EEOC noted,

COVID-19. Pursuant to CDC guidance, an

however, that employers must ensure that the tests are accurate and reliable. Per the

employee with confirmed or suspected COVID-19 can return to work after at least 3

EEOC, employers may consult (and should track updates to) guidance from the U.S. Food

days (72 hours) have passed since symptoms have dissipated without the aid of medica-

and Drug Administration (FDA), the CDC, and/or other public health authorities to

tions and at least 7 days have passed since symptoms first appeared. An asymptomatic

make that determination. However, testing only reveals if the virus is currently present; a

employee who tests positive for COVID-19 may return to work after at least 7 days have

negative test does not mean the employee

passed since the positive test, provided that

will not acquire the virus later. The EEOC also

the employee remains asymptomatic that

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

entire time. Employers should establish a pro-

partners with the reciprocal commitment and

tocol based on (or more restrictive than) those guidelines and enforce that protocol

courtesy (while maintaining appropriate confidentiality of employee information). A com-

consistently for all workers.

pany should also carefully review its contracts with contractors, vendors, and other

9) Contractors and vendors: It is important to remember that other members of the community–contractors, vendors, and other business partners–may also have an impact on the

partners to determine the parties’ respective rights and responsibilities in the case of work disruption.

safety of a company’s workplace and employ-

10) Telework: Employers have an enduring

ees. To the extent that it is not necessary for

obligation to address known workplace haz-

such other persons to be on-site at a compa-

ards. One of the best ways to minimize em-

ny, they should be instructed, until further

ployee exposure to hazards during the cur-

notice, not to report to the company’s office

rent public health crisis, as emphasized by the

or facility (without written approval by a des-

CDC and other agencies, is to allow those

ignated company official). Where such per-

who can perform their work remotely to do

sons are deemed critical for the maintenance

so. When a business has decided that it is nec-

of a company’s operations, the company

essary to continue or resume on-site opera-

should be regularly communicating with such

tions, it should identify those individuals

contractors, vendors, and other business partners and ensuring that they utilize the

whose on-site presence is essential to the company’s operations and consider whether

same types of precautionary measures and

other workers may continue to work remote-

protocols for themselves and their employees

ly for some period of time. Employers may al-

that the company requires for its own em-

so consider shift work to minimize the num-

ployees. For example, if a company requires that its own employees provide a daily certifi-

ber of workers who are in the workplace at any one time, which may promote better so-

cation they are not exhibiting COVID-19 symptoms and have not been exposed to the

cial distancing.

virus, third parties permitted to enter the company’s premises should be required to make the same reports, either directly to the company or through their own employer (if, for example, they are engaged through a staffing company). A company should ensure that its business partners communicate any known risks or exposures as soon as they

arise, and it should likewise provide such

11) Leave and absence protocol: During the public health crisis, employers should consider modifying or extending existing company leave policies to encourage employees to stay home from work if they are sick or have been exposed to COVID-19. Employers should be consistent in granting leave requests and abide by company policy, as well as applicable federal, state, and local law.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Additionally, for employers with fewer than

to stay home due to a school or daycare clo-

500 employees, the Families First Coronavirus Response Act (FFCRA) provides up to

sure and have already exhausted available paid time off.

12 weeks of public health emergency leave to eligible employees who are unable to work

12) Discrimination, harassment and retalia-

because they must care for their child whose school is closed or whose childcare provider

prevent discrimination, harassment and retal-

is unavailable due to a public health emergency related to COVID-19. The first ten days of such leave may be unpaid, but the remaining days must be paid in an amount prescribed by the statute. An employee may elect, but is not required, to use other types of paid leave (including the emergency paid sick leave available under the FFCRA) during the tenday waiting period that would otherwise be unpaid under the FFCRA. The FFCRA also provides up to 80 hours of

emergency paid sick leave (in an amount prescribed by statute) to eligible full-time employees who are unable to work for specified reasons related to COVID-19. Part-time employees are entitled to emergency paid sick leave based on their average number of work hours in a two-week period. An employer may not require an employee to use other paid leave already provided by the employer before the employee uses emergency paid sick leave under the FFCRA.

tion: Employers must make every effort to iation in the workplace. All return-to-work protocols, as well as decisions regarding COVID-19 related leave requests, must be

implemented without discrimination or retaliation. Employers also should remind employees that discrimination, harassment, and retaliation—COVID-19 related or otherwise— will not be tolerated. 13) Workers’ compensation laws: State workers’ compensation benefits generally are an exclusive remedy for employees injured in the scope of their employment. Employers should be cautioned, however, that workers’ compensation law may not be an absolute bar to other claims by employees who contract COVID-19 in the workplace. As an initial matter, the contracting of COVID-19 in the workplace may or may not be considered a workplace injury for purposes of workers’ compensation, depending on applicable state law, the

specific circumstances of the infection, and/or the employee’s line of work. And if an employ-

Although not required to do so, larger em-

ee’s COVID-19 illness is not deemed a workplace injury (or if a business has not obtained

ployers (i.e., those with more than 500 employees) may consider temporarily adopting a

workers’ compensation coverage on behalf of a worker), that individual may be able to pur-

policy that provides for paid (or partially paid) childcare-related leave. If such paid leave is

sue a traditional “tort” claim against a business. Such a claim would typically require a

not feasible, larger employers may consider

demonstration of some level of negligence or

offering unpaid leave to employees who need

other fault on the part of the business;

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

causation would also be a key issue in litiga-

response, and correctional institutions; for all

tion. In addition, even where an employee’s COVID-19 illness would be considered a

other industries, a COVID-19 case is potentially reportable only if there is objective evi-

workplace injury (and thus allow an employee to be eligible for workers’ compensation ben-

dence that is reasonably available to the employer that the case is work-related (e.g., a

efits), an employee still might be able to assert a tort claim in certain states—depending

number of cases developing among employees who work closely together without an-

on the circumstances—based upon a demonstration of intentional misconduct, fraud, or

other explanation).

serious and willful conduct. A subcontractor employee also could seek to hold a contractor liable for environmental, health and safety damages under Supreme Court precedent that imposes liability when a company assumes responsibility for day-to-day management of environmental, health and safety matters. 14) OSHA enforcement: Beyond workers’

compensation (and/or tort claims, as applicable), if an employer is cited for workplace hazards by OSHA because of a failure to act reasonably to address known COVID-19 related risks in the workplace, it can be subject to penalties. An employer can best position itself to avoid such liability by following the guidance and directives of the CDC, OSHA, and state/local governments and agencies, and preparing employees for unannounced site visits from these agencies.

15) Employee privacy and appropriate priva-

cy protection for others: Businesses that reopen during the pandemic must take steps to protect employee privacy and keep medical information confidential in accordance with federal law. It also will be critical to plan carefully for any information collection about other individuals—including visitors, clients, contractors and retail consumers. Companies will want to pay careful attention to applicable law and related best practices in connection with the collection of information concerning employee health. These activities typically do not require compliance with the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA), as these actions of an employer to monitor temperatures and the like are not subject to

HIPAA. Nonetheless, appropriate attention should be paid to how this information is

Importantly, COVID-19, unlike the common

gathered, how employees with particular medical conditions are identified and treated,

cold and influenza, is not exempted from OSHA reporting and recordkeeping require-

and how this information is shared and maintained. The Americans with Disabilities Act

ments. OSHA also recently issued updated guidance1 effectively loosening its en-

(ADA) includes protections for employee medical information, including employee tem-

forcement of COVID-19 recordkeeping for

perature reports, reports of other health

industries other than healthcare, emergency

symptoms, and the fact that an employee has

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

tested positive for COVID-19. Per the EEOC,

event, companies should plan carefully to en-

the ADA requires that all medical information (including the examples provided in the previ-

sure that information can be gathered appropriately and only used and maintained for le-

ous sentence) about a particular employee “be stored separately from the employee's

gally permissible purposes.

personnel file, thus limiting access to this confidential information.” Although such information may be communicated to those in company leadership with a true need to know (so that they can, for example, take precautions consistent with CDC guidance), such information should not otherwise be disclosed to employees. For the avoidance of doubt, this means that, if an employee reports COVID-19 symptoms or tests positive for COVID-19, a company should not disclose the name of that employee to their coworkers (provided, however, the company should inform potential close contacts of the employee that they may have been exposed to COVID19).

Many companies also will need to consider whether to collect information about nonemployees in connection with operating a safe business environment. This can include (for most companies) vendors, contractors

and other “on-site” assistance for the company. For many companies, it also will involve visitors or clients, in a professional setting, or, more broadly, guests or consumers in retail, entertainment or travel-related settings. While employee privacy laws typically will not apply in these settings, companies should carefully consider other appropriate privacy protections as well as ensure that any infor-

mation gathering activities are consistent with applicable non-discrimination principles. While (at least in the United States) most of

Companies also may be considering various

these activities will be regulated primarily

tracking activities related to employees, ei-

through appropriate best practices, data that

ther in direct connection to work activities or in “away from work” situations. Companies

is collected and maintained still may be subject to company privacy policies and perhaps

may wish to monitor employee movement within office settings, when engaged in com-

other applicable laws (such as the California Consumer Privacy Act for California resi-

pany business (such as visiting clients or other business travel), and (perhaps) even in non-

dents), as well as potential enforcement if there is a data breach or potentially unper-

work settings. These efforts require careful planning on privacy-related issues, both in the

mitted use of this information. In addition, a number of states are implementing specific

United States and in other countries, particularly in Europe. Companies should carefully

legal requirements in connection with the collection of biometric information. Accordingly,

balance the legitimate business purpose of this monitoring with the extent and intrusive-

companies who will be collecting information about non-employees will need to carefully

ness of the information gathering. In any

consider the appropriate uses and disclosures

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

of this personal information to ensure that

including location-specific orders and new

they do not run afoul of privacy and consumer protection principles. This must include data

and revised federal guidance, to update their operations plans—and communicate those

retention issues and other activities to link this data to other data that companies may

changes to their workforce—as appropriate.

collect about these individuals, which will be particularly important in connection with individual rights that are emerging in California, Europe and other places concerning personal data. Next Steps As employers resume operations, they should continue to monitor emerging developments,

View this article at Marinbar.org 1

OSHA has since issued even newer, superseding guidance.

The law firm of WilmerHale prepared this article as one of its “Client Alerts,” which it publishes on its website. Many thanks to Peggy Otum for making it available to the Marin Lawyer. Other WilmerHale attorneys who contributed to this article are: Kirk J. Nahra, Laura E. Schneider, Lucas Moskowitz, Bonnie L. Heiple, Andrew Stauber, Jessica Notebaert, and Michael J. Lenzi. WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CDC FAIRGUIDANCE HOUSING CDC Guidance for Employers Reopening Into a COVID-19 World WILMERHALE

ast month, the Centers for Disease Con-

trol and Prevention (CDC) issued extensive guidance for reopening the country as states and local governments continue to curb the rate of COVID-19 infections. On May 19, the CDC released a 60-page document laying out interim guidance for childcare programs, schools and day camps, restaurants and bars, and mass transit, along with detailed social distancing and safety protocols for employers—specifically those with workers at high risk for severe illness from COVID-19. On May 27, the CDC followed up with guidance describing how office buildings can reopen safely. We discuss highlights of the CDC’s guidance most employers should familiarize themselves with, followed by highlights specifically for office building employers.

unaware, the CDC directives would appear to apply to almost every business. The CDC cautions that its guidance is not a federal mandate. Instead, the document “sets forth a menu of safety measures, from which establishments may choose those that make sense for them in the context of their operations.” Specific industries may need to take

The CDC defines a “high-risk worker” as any

more stringent safety precautions than the general guidelines. And, although we believe

individual over age 65, as well as those with underlying medical conditions, including, but

it prudent for a business to strive to adhere to all of the CDC recommendations (for employ-

not limited to, chronic lung disease, moderate

ee relations reasons, as well as to mitigate le-

to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obe-

gal risk), some of the recommendations are more forceful than others, with employers di-

sity, diabetes, liver disease, and chronic kidney disease that requires dialysis. As a practi-

rected to follow certain protocols and merely urged to “consider” others. Nonetheless,

cal matter, because this category is broad, and some employees may have underlying

many employers will need to comply with state and local rules that are more burden-

medical conditions of which employers are

some than the CDC recommendations.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

The interim guidance is laid out in a series of

tion with the employee, not imposed unilater-

three steps, reflecting different protocols as a business scales up its operations. These steps

ally by the employer.

appear to correspond to the three phases in the White House’s Opening Up America Again plan, which suggests that states and local governments may ease business restrictions once they satisfy certain gating criteria concerning downward trends for infection rates, testing ability, and health care system capacity. Notably, most of the CDC’s employer-specific protocols apply in all three steps.

Many of the other recommendations included in the “Interim Guidance for Employers with Workers at High Risk” appear to offer guidance applicable to employers overall—not just with respect to high-risk workers. Notably, the CDC’s updated guidance recommend employers take the following potential

measures: •

systems and ensure they are operating properly prior to reopening. Once reo-

First, the CDC advises that employers

pened, employers should keep doors and windows open as much as possible to in-

should encourage workers at higher risk for severe illness due to COVID-19 to self-

crease circulation of outdoor air unless doing so poses a safety risk to individuals and

identify, but avoid making unnecessary medical inquiries or unilaterally excluding some

workers from the workplace. This advice is consistent with prior EEOC guidance prohib-

employees using the workspace. •

iting employers from categorically restricting

Employers should ask employees who use public transportation to consider teleworking to promote social distancing.

older workers from the workplace and cautioning against the unilateral exclusion of

Employers should check their ventilation

•

Employers should enforce the use of cloth

medically vulnerable employees.

face coverings when around others where

The CDC also recommends that employers protect higher-risk employees by supporting

feasible, and, for certain industries, require face shields. Note, however, many

and encouraging options to telework during all three steps of the scaling-up process, not-

mask or facial covering at worksites where

states, require that all employees wear a maintaining proper social distancing is not possible.

ing that during steps 1 and 2 higher-risk workers should shelter at home. When telework is not feasible, the CDC states that employers should consider offering higher-risk workers duties that minimize their contact with customers and other employees. However, consistent with EEOC guidance, such an

•

Employers should consider conducting routine, daily health checks (e.g., temperature and symptom screening) of all employees. If conducting health screenings, employers must keep employee medical

accommodation should be made in coordinaTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

•

information confidential.

months of inactivity. This includes confirming

Employees with COVID-19 symptoms at

that the ventilation system is working properly, opening windows and doors to increase

work should be separated from other workers and sent home immediately. Further, employers should close off areas used by the sick person and wait 24 hours to clean and disinfect. If it is not possible to

with a prolonged facility shut-down, such as mold growth or stagnant water.

wait 24 hours, wait as long as possible before cleaning and disinfecting. The CDC

Next, the CDC’s guidance for offices advises

also directs that employers should inform

reduce the likelihood of disease transmission.

local health officials and notify staff and customers (if applicable) of possible expo-

The CDC recommends the following

sure within the workplace. •

circulation of outdoor air if possible and safe to do so, and checking for dangers associated

employers to implement “hazard controls” to

measures: •

Employers should inform employees who

physical barriers to separate employees and visitors where maintaining proper so-

have had close contact with a person diagnosed with COVID-19 to stay home and self-monitor for symptoms. •

if cases increase in the local area. •

cial distance is not possible; •

Employers should be prepared to consider closing for a few days if there is a case of COVID-19 in the workplace or for longer Employers should train all managers and staff in the above safety actions. Such

•

Replacing “high-touch communal items” like coffee pots and shared snacks with pre-packaged, single-serving items;

•

Providing accommodations for employees who use public transit to commute to work, including by reimbursing parking costs;

•

Prohibiting “handshaking, hugs, and fist bumps”; and

staff and visitors. Per the recommendations, office building employers should ensure, prior to reopening,

Encouraging employees to conduct meetings and small group activities outside;

for office buildings build on the foregoing guidance, emphasizing that employers should create a COVID-19 workplace health and safety plan that is clearly communicated to all

Using signs or floor markings placed six

feet apart to indicate where employees and visitors should stand;

training can be done virtually or in-person if social distancing is maintained.

The CDC’s new voluntary recommendations

Installing transparent shields or other

•

Using “ultraviolet germicidal irradiation” to help inactivate the virus.

that the building is ready for occupancy after THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Finally, the CDC encourages office employees

and requirements from state and local au-

to wear a cloth face covering in all areas of the office, but cautions that face coverings

thorities.

are not personal protective equipment and may not protect the wearer from exposure to the virus that causes COVID-19. Office building employers planning to resume or maintain their onsite operations should consider incorporating the above guidance

(as well as guidance from the Occupational

View this article at Marinbar.org

The law firm of WilmerHale prepared this article as one of its â&#x20AC;&#x153;Client Alerts,â&#x20AC;? which it publishes on its website. Many thanks to Peggy Otum for making it available to the Marin Lawyer. The WilmerHale attorneys who contributed to this article are: Jonathan D. Rosenfeld, Laura E. Schneider, Andrew Stauber, and Michael J. Lenzi. WEBSITE

Safety and Health Administration), while also ensuring that their return to work and operations plans incorporate applicable guidance

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THE MARIN LAWYER An Official Publication of the Marin County Bar Association

OVERCROWDING FAIR HOUSING Overcrowding and COVID-19 DAVID EDMONDSON

here is already a cottage industry of

By the Census definition, crowding occurs

takes on how COVID-19 will change ur-

when there are more than 1.5 people per

ban planning, and they mostly fall along famil-

room in a home. In Marin, this is only common

iar lines: Joel Kotkin and other sprawl apolo-

in San Rafael’s Canal neighborhood2. In the

gists have said it heralds the end of dense liv-

Canal, approximately 30% of households are

ing. Others have said that cities are more important than ever and that’s roughly where I

overcrowded, with 9% of homes hosting more than two people per room. That’s like having

fall too. I won’t link to anything here as bad takes don’t deserve it, but a quick search will

three people living in a one-bedroom, or five in a two-bedroom, as the living room counts

turn them up.

as a room. Quoted in the Marin IJ on May 30, Marin County Public Health Officer Dr. Matt

But day-to-day planners don’t get to live in such a stark world. Long after COVID-19 ends up as another talking point lobbed at ideological opponents, they will need to plan

Willis said, “[People are] coming home to a setting where there may be six to 10 people living in a two-bedroom unit.”

based upon the desires of the community and their remit to make the safest places they can.

It’s not hard to understand why crowding occurs. In an area without enough affordable

This means that as they advise elected officials on planning, they need to understand the

homes, people get roommates. Among very low-income situations, families room with

public health research on density and airborne contagious disease and how it applies

other families and singles bunk more than one per bedroom.

to their community’s context.

Density, the number of homes per acre, is not

Here, I hope to synthesize the current understanding of how this coronavirus spreads in

correlated with viral spread. In Chicago, density is negatively correlated with coronavirus

communities and what it means for planners in Marin. An excellent roundup of the litera-

cases, according to ProPublica Illinois3. In New York, a regression model I ran on New

ture by Adam Rogers was published in Wired

York City data found that density does not

on May 20 , and I’ll draw heavily from his work. But, if you stopped reading now, the

correlate with viral cases, whereas the crowding rate and the rate of driving to work does

takeaway is this: It’s not the density. It’s the crowding.

even when controlling for income. Worldwide, denser cities like Seoul and Hong Kong

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

had less transmission than lower-density cit-

On the crowding side, a crowded home multi-

ies like Wenzhou (in China) or the rural areas of northern Italy.

plies the number of people who can potentially get infected and then spread it to others. If

The virus’s spread is also not correlated with

one person comes home with the virus, they can spread it to everyone living there. Crowd-

transit use. As Rogers’ Wired article explains, an early paper from MIT tried to make this correlation in New York City by mapping viral cases to the subway network, but peers and critics actually found the opposite, that car-

dependency in New York was more closely

ing also makes it nearly impossible to selfisolate, which requires a separate bedroom to live in for two weeks. If you share a onebedroom apartment with two other people, where will your roommates go?

related to cases than the subway. My regres-

As mentioned, crowding in Marin is over-

sion model found the same. Laura Bliss, writ-

whelmingly concentrated in The Canal. In the

ing in CityLab on April 21, pointed again to

short-term, the IJ reports that San Rafael has

transit-dependent Seoul and how much more

been giving hotel rooms to essential workers

successfully it has avoided the high infection

and those who have caught the coronavirus

rates of New York . To that, I would add Paris

who live in crowded conditions so they can

(31 per 10,000 people as of May 23, 2020, ac-

isolate. In the long-term, crowding needs to

cording to the New York Times’ tracker5) and

be addressed specifically. Untangling crowd-

Tokyo (just four per 10,000 people, according to Google’s tracker6).

ing without disrupting the Canal’s community will be a significant problem for planners, but

Instead, it’s about crowding, especially

one they need to tackle.

crowding among lower-income people. NYU’s Furman Center found correlations between

This might mean building better connections between The Canal and nearby neighbor-

crowding, poverty, and viral cases7. In Singapore, viral cases are highest in crowded mi-

hoods, especially Montecito. Work has already begun on improving East Francisco,

grant dorms, according to Rogers’ Wired

which is a great first step. It will also mean al-

piece. On the income side, lower-income people are more likely to have the kinds of low-

lowing underutilized parcels to be redeveloped into extremely low-income housing that

income service jobs deemed essential and are more likely to need to go to work because of a

fits with the cultural expectations of the neighborhood. There’s no guarantee these

lack of savings generally. This puts them into more situations where they could be exposed

homes would be filled by existing residents of the area, but targeted advertising might help.

to the virus. In my regression model, there was a strong negative correlation between

But this is where the tangle begins. As men-

income and infection rate.

tioned above, crowding occurs when there aren’t enough affordable homes, and many of

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

the apartments in The Canal that are over-

hit or how it will transmit, but like this one, it

crowded are expensive market-rate homes. The only way many families can afford to live

will probably hit our most crowded, lowestincome neighborhoods hardest. Plan for that.

there is by bunking with other families, and so crowding is a matter of survival. Allowing the

A version of this article originally appeared on

area to de-crowd would necessarily mean a disruption to the neighborhood and possible

Greater Marin.

gentrification as people shift around. If the city or county purchased the apartments to slash rents and stabilize the area, they might put undocumented residents at risk of eviction as federal public housing funding rules change. Further, the move would have significant financial and political ramifications. But even putting apartments under county ownership is just a patch. Fundamentally, there are just not enough homes at an affordable price for San Rafael’s lowest-income

families. That is something San Rafael and the county can start to address, but to be solved the Bay Area needs millions of new homes. And, because this isn’t an issue of density, whatever homes San Rafael does build should be high-density, transit-oriented communities.

David Edmondson’s urban policy blog The View this article at Marinbar.org 1

Adam Rogers, ‘How Does a Virus Spread in Cities? It’s a Problem of Scale,’ Wired, 20 May 2020. 2 U.S. Census Bureau, ‘Tenure by Occupants Per Room American Community Survey 1-Year Estimates,’ 2018. 3 Haru Coryne, ‘In Chicago, Urban Density May Not Be to Blame for the Spread of the Coronavirus,’ ProPublica Illinois (blog), 30 April 2020. 4 Laura Bliss, ‘The New York Subway Got Caught in the Coronavirus Culture War,’ CityLab, 21 April 2020. 5 The New York Times, ‘France Coronavirus Map and Case Count,’ The New York Times, sec. World, accessed 27 May 2020. 6 Google, ‘Coronavirus (COVID-19) Tokyo,’ Google News, accessed 27 May 2020. 7 ‘COVID-19 Cases in New York City, a Neighborhood-Level Analysis,’ NYU Furman Center, The Stoop (blog), 10 April 2020.

David Edmondson writes the blog The Greater Marin and is principal of Edmondson Planning and Design, a boutique planning firm. Though now based in Washington, DC, David hails from San Anselmo and, as he puts it, Marin never really leaves a person. You can find him on Twitter as @theGreaterMarin and online at theGreaterMarin.org & EdmondsonPlanning.com, and by email at david@edmondsonplanning.com. EMAIL | WEBSITE

As Marin’s planners, both municipal and

county, continue to do their work, they need to keep an eye on any program that might help resolve this issue. It is not just something that can be put on the back burner but should be front-of-mind as they do their work. It is not just a matter of quality of life for people crammed into homes built for half as many people. It is a matter of life and death. We don’t know when the next pandemic will THE MARIN LAWYER An Official Publication of the Marin County Bar Association

RENEWABLE ENERGY FAIR HOUSING Batteries, Bankruptcies and the Future of Renewable Energy CHRIS LOCKE

he Growth of Renewable Energy

not shining or the wind is not blowing.

Renewable energy sources have been

Technological Advances and Government

rapidly deployed across the nation for more than a decade. In addition to government mandates in California and other states promoting renewable energy, federal and state tax incentives and technological advances have spurred their growth, as have the reduced cost and improved efficiency of wind turbines and photovoltaic (PV) solar energy systems. Such renewable energy sources have demonstrated great potential for meeting long-term electric power demand, but most regions remain dependent on fossil fuel generation to balance the grid when the sun is

Mandates California has led the way in developing renewable energy through governmentmandated renewable energy goals and storage capacity requirements. Under AB 32, enacted in 2006, the California Public Utilities Commission (CPUC) established a renewables portfolio standard (RPS) for retail electricity sellers with goals of generating 33 percent of electricity from renewable energy sources by the end of 2020 and 50 percent by the end of 2030. More recently, former Governor Brown signed SB 100, which stepped

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

up the 2030 goal to 60 percent and added a

tential to reduce or eliminate reliance on

new goal of 100 percent of electric power from carbon-free energy sources by the end

“peaker plants” and other fossil fuel sources when variable sources like solar and wind are

of 2045. Hawaii, a state that is “off the grid” and entirely dependent on its own generating

producing little or no energy.

capabilities, has similarly adopted the goal of generating 100 percent of its electricity from

Once again, California has led the way. Enacted in 2010, AB 2514 calls for 1.3 gigawatts of

renewable sources by the end of 2045.

energy storage capacity from the state’s three large investor-owned utilities by 2020,

Other states across the nation have adopted similar mandates and incentives to promote

and legislation adopted since then accelerates and expands the deployment of energy

the development of renewable energy and storage capacity. The declining cost of PV so-

storage systems. While several different energy storage technologies exist or are under

lar also provides a significant incentive. A recent study by Lawrence Berkeley National

development — including pumped hydropower and thermal storage — the near-term focus

Laboratory1 demonstrates the expansion of utility-scale solar installations throughout the

has been on lithium ion-based battery storage systems. These systems offer fast response

nation: Although California was an early leader in utility-scale solar projects and still ac-

times and high cycle efficiencies, can be used for utility-scale as well as residential and

counts for 40% of the cumulative installed national capacity, the Southeast has become the

commercial applications, are relatively easy to deploy, and costs are continuing to drop

growth leader in recent years, with Florida alone accounting for more than 25% of all

dramatically. As with any energy project, however, utility-scale battery storage pro-

new projects, more than doubling that state’s

jects present land use, permitting and envi-

previous cumulative capacity.

ronmental and health and safety issues that must be addressed as these systems are pro-

Storage Capacity Is Key to Reliance on Renewable Energy States have also addressed the need to balance the grid through energy storage systems. Because solar and wind are variable energy sources, electricity from fossil fuel generation and other energy sources must be used to provide base load to balance the grid, as demonstrated by the California Independent System Operator’s well known “duck chart.”2 Energy storage systems have the po-

posed, deployed and operated.

Given the reduced cost of PV solar and wind energy systems, government mandates and support for renewable energy, as well as technological advances and success in expanding reliance on renewable sources and balancing the grid with energy storage systems, California seems to be on track toward achieving its renewable energy goals. What could possibly go wrong?

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Challenges and Opportunities for Achieving

PPAs, which are valued at approximately $42

Renewable Energy Goals

billion, as part of the plan to return to solvency.3 The PG&E bankruptcy plan should recog-

As we all know, last year Pacific Gas & Electric (PG&E), initiated Chapter 11 bankruptcy protection from an estimated $30 billion in potential liability resulting from the horrific Cal-

nize the need to preserve and promote the financial viability and stability of the renewable energy industry.

ifornia wildfires. Ironically, the hotter, drier climate change-related conditions that con-

In recent years, other approaches have also been adopted to promote renewable energy

tributed to the wildfires resulting in PG&Eâ&#x20AC;&#x2122;s losses and liabilities could also affect attain-

sources and to help stabilize power supplies that historically have been furnished almost

ment of Californiaâ&#x20AC;&#x2122;s renewable energy goals to combat climate change. Scenarios similar

exclusively by investor-owned utilities. As noted above, CCAs have been created by

to PG&Eâ&#x20AC;&#x2122;s wildfire-related losses and liabilities stemming from severe storms, flooding,

some cities and counties, including Marin, to provide such opportunities. However, reli-

storm surge, and sea level rise are entirely plausible. Such losses and liability will pose

ance remains on the utilities to maintain and control transmission and distribution net-

continuing challenges to the stability of power supplies, but may also present opportuni-

works, and there are uncertainties about the long-term financial viability of CCAs in some

ties for more distributed resources and providers, including Community Choice Aggrega-

regions.

tors (CCAs), as discussed below.

Further government action may be needed to stabilize energy supplies and commitments to

Climate change-related losses, liabilities and bankruptcy proceedings for utilities could al-

renewable energy sources and goals. In the case of PG&E, California has enacted legisla-

so affect existing long-term power purchase agreements (PPAs) for renewable sources,

tion allowing it to issue bonds, supported by increased rates, to cover losses and liabilities

especially when combined with changes in de-

relating to wildfires. More recently, PG&E

mand, the declining cost of solar and wind, and changes in rate schedules. In California

reached a proposed settlement with FEMA for wildfire-related claims, resolved wildfire-

and elsewhere, PPA rates have declined significantly over the past decade, providing im-

related criminal liability with a plea agreement, reached a proposed settlement with a

petus for potential renegotiation of such agreements. PG&E pledged last year to honor

committee of wildfire victims,4 and is finalizing a proposed reorganization plan in the

renewable energy contracts in the bankruptcy plan but could still pursue efforts to rene-

bankruptcy court proceedings.

gotiate or restructure renewable energy

The long-term stability of power supplies will depend on maintaining credit-worthy power

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

purchasers and the financial viability of re-

newable energy project owners, developers, manufacturers, and suppliers. In California, achieving these objectives will depend on both the PG&E bankruptcy plan as well as the Stateâ&#x20AC;&#x2122;s continued commitment to promote renewable energy sources and storage capacity, in part by addressing challenges to the stability of the energy supplies, the distribution network and renewable energy sources. View this article at Marinbar.org 1

Bolinger, et al., Utility Scale Solar: Empirical Trends in Project Technology, Cost, Performance and PPA Pricing in the United States (Lawrence Berkeley National Laboratory, December 2019) 2 http://www.caiso.com/Documents/ FlexibleResourcesHelpRenewables_FastFacts.pdf#search=fast%20facts 3 https://www.greentechmedia.com/articles/read/pge-proposes-18bbankruptcy-reorganization-but-faces-setback-on-bond-legisl https://www.utilitydive.com/news/will-pge-be-forced-to-turn-to-ppas-toget-a-bankruptcy-exit-plan-confirmed/575045 4 https://www.utilitydive.com/news/pge-fema-claims-bankruptcy/573888 https://www.ft.com/content/582dd6e7-2ea5-4520-ae4c-d50c00c3799e

Chris Locke, a partner and former Chair of the environmental law practice at Farella Braun + Martel LLP, has focused on environmental law and litigation for more than 30 years. He is a Fellow of the American College of Environmental Lawyers and is ranked by Chambers USA. He has lived in Marin for more than 35 years, is a former Director of Legal Aid of Marin, and is a current MCBA Director. EMAIL | WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

BUSINESS INTERRUPTION FAIR HOUSINGINSURANCE Will Insurers Be Subsidizing Your Next Meal at the French Laundry? Business Interruption Claims Amid the COVID-19 Pandemic DANIEL J. SCHNEIDER

oodies have long known Thomas Keller for his Michelin-starred restaurants, in-

cluding the French Laundry, at which until recently, for a small fortune, one could be treated to culinary mastery. During the COVID-19 pandemic, with the French Laundry and his other establishments closed, Mr. Keller is becoming known in insurance law circles in California. In French Laundry Partners, LP, et al. v. Hartford Fire Insurance Company, et al., his various business entities recently filed a complaint against their insurance carriers in Napa County Superior Court, demanding business interruption coverage under their policies. The carriers have denied coverage, claiming no events triggering such coverage have occurred. “Business Interruption Insurance” is defined as, “An agreement to protect against one or more kinds of loss from the interruption of an ongoing business, such as a loss of profits while the business is shut down to repair fire damage.” (Black's Law Dictionary (11th ed. 2019).) It is optional insurance coverage some business owners obtain to protect themselves during work stoppages. In some instances, landlords require such insurance to ensure

tenants’ ability to pay rent despite being una-

ble to operate their businesses. In the case of legally forced closures resulting from COVID-19, the plain meaning of the phrase “business interruption insurance” might lead one to think that business owners would be insured for losses under policies with such coverage: business owners are not permitted to operate, business has been interrupted, therefore coverage. The reality, however, is more nuanced. Carriers have de-

nied claims by invoking creatively crafted policy language even in connection with closures arising out of significant disasters. Businesses have fought back, demanding coverage in several instances and seeking court intervention upon carrier refusal. Insurance companies’ typical policy language provides for business interruption coverage only if the business is closed due to physical damage to the place of business; the physical place of business is closed by order of “Civil Authority,” or physical damage to a “dependent property” (discussed below) causes the closure of the place of business. Not surprisingly, policies also contain exclusions even if the cause falls into one of these three categories.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

The case law in California covering these top-

The same is true with respect to “dependent

ics is surprisingly sparse, with courts looking to sister states for authority and guidance.

property” physical damage. Governmental orders have excepted essential services from

(See, e.g., Buxbaum v. Aetna Life & Cas. Co. (2002) 103 Cal.App.4th 434, 444.) However,

closure, meaning that utilities and basic services remain open or operable. In order for

the issues raised by French Laundry Partners, are akin to the issues hotly litigated in New

business interruption coverage to apply, not only would the services at the “dependent

York in connection with a prior infamous disaster, Superstorm Sandy.

property” have to fail—preventing the subject business from operating—but that failure

Sandy brought with it a storm surge that left a not inconsequential portion of Manhattan un-

would have to be traceable to physical damage to the “dependent property.”

der water. As a result, an electric transformer

In Borah, such a nexus could be made be-

shorted, leaving a significantly larger portion

tween damage to the transformer (the

of Manhattan without power. A New York

“dependent property”) and the inability of the

City law firm sued its business interruption

law firm to operate. However, the court up-

insurer (who also happens to be a litigant in-

held denial of coverage because the damage

French Laundry Partners) after it denied cover-

to the “dependent property,” the transformer,

age. (Borah, Goldstein, Altschuler, Nahins &

was caused by flood and flood coverage was

Goidel, P.C. v Trumbull Ins. Co. (Sup. Ct., New York County, April 6, 2016) [Index No.

specifically excluded from the firm’s policy. In the case of COVID-19, while it’s unlikely any

652633/2013, Mtn Seq. No. 001]

policies contain an explicit “pandemic” exclu-

(Unpublished).)

sion, many do contain a “viruses and bacteria”

In Borah, the court sided with the insurer: It found coverage was not required because there was no actual damage to the firm’s offices. Today, while the widespread forced clo-

sures of businesses are due to a global pandemic, the physical plants have been shut-

exclusion. Insurers began including this exclusion in the wake of the 2003 SARS outbreak. In Mr. Keller’s case, according to his complaint, his deluxe policy does not contain the viruses and bacteria exclusion, nor any other that might be applicable.

tered, in large part, to reduce the spread of the virus, not because of the actual presence

While it is difficult to predict, it will likely be challenging for Mr. Keller or any other in-

of the virus in those places. Even if the presence of a virus definitively constitutes physi-

sured to succeed under a physical damage theory. That leaves potential coverage to

cal damage to a place of business, it is uncertain how many businesses could show actual

claims under the Civil Authority provision. In Borah, the language of the law firm’s insur-

damage in the form of the presence of the vi-

ance policy (which is also the standard lan-

rus in their space.

guage) reads, “This insurance is extended to

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

apply to the actual loss of Business Income

Plaintiffs’ complaint in French Laundry Part-

you sustain when access to your [place of business] is specifically prohibited by order of a

ners argues that the COVID-19 orders, which require many people to stay home and for

civil authority.” (Borah, supra, at p. 23 (emphasis added).) The Court denied cover-

non-essential businesses to cease onsite operations (with quite limited exceptions), are

age because the firm’s offices were not squarely within an evacuation zone, and

tantamount to a specific prohibition of access to their places of business. They contend that

therefore access to the offices had not been “specifically prohibit-

though they can physically walk into their restaurants, since they

ed.” (Id. at pp. 27-28.)

cannot operate, they cannot “access”

California has a policy of

them for the purposes of the policies.

“interpret[ing] the coverage clauses of insurance policies broadly,

Arguably, the rea-

protecting the objec-

sonable expectation

tively reasonable expec-

of the average in-

tations of the in-

sured would favor

sured.” (AIU Ins. Co. v. Su-

coverage. (AIU Ins.

perior Court (1990) 51 Cal.3d 807, 822.) New

Co., supra, 51 Cal.3d at p. 822.) Con-

York has the same policy

sistent with such an

(Dean v. Tower Ins. Co. of

expectation, as in

New York (2012) 19

several other states,

N.Y.3d 704, 708) and the Borah court still took

the Legislature in New York is consid-

a narrow view on what would trigger coverage.

ering a bill requiring insurers to cover the

Has access to the French Laundry been specifically prohibited? Despite

losses of business owners with business interruption coverage

shelter-in-place orders, most buildings in California technically remain open. Health offic-

during the COVID-19 state of emergency. [See the author’s companion article address-

ers’ and other governmental orders have not specifically stated that people are not allowed

ing these bills and potential Contracts Clause impediments.]

to enter their places of business. It is the business operations themselves which have been

California has not gone that route yet, alt-

ordered closed.

hough its insurance commissioner has issued a warning to insurers to “fairly investigate”

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

coverage for business interruption claims.

With an ongoing pandemic causing enormous damage of all kinds throughout the state and the country, California courts may be receptive to Mr. Keller’s arguments. Hopefully, the French Laundry will reopen with or without an influx of cash from its insurers. Other business owners should not wait to find out before making claims under their own business interruption policies. View this article at Marinbar.org Daniel J. Schneider is a New York based trial attorney and a Founding Partner at Farber Schneider Ferrari LLP. His practice centers around the real estate arena, representing developers, design professionals, interior designers, contractors and others with a multitude of issues which affect real property and construction projects. This includes, without limitation, property damage, construction defects, personal injury defense, neighbor disputes, corporate disputes, contractual issues and employment issues within the various companies. Mr. Schneider previously practiced in Southern California as General Counsel for an education-based start-up and is on the cusp of expanding his California practice. He opened his firm with his partners and a shared philosophy that good relationships are good business and that efficiency and effective advocacy cultivate a years long attorney-client relationship which spans multiple matters. EMAIL | WEBSITE

The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us. We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome. THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTRACTS CLAUSE FAIR HOUSING Will the Constitution’s Contracts Clause Doom the French Laundry? DANIEL J. SCHNEIDER

s the owners of the French Laundry,

1821.) Insurers argue that a mandatory cov-

along with numerous other policyhold-

erage law affecting policies that would not

ers, litigate insurance coverage of COVID-19-

otherwise cover COVID-19 losses would be

related mandatory closures under their business interruption clauses, some states are

just such a “Law impairing the Obligation of [insurance] Contracts.”

considering legislation to mandate such coverage under those clauses. [See the author’s companion article regarding the underlying business interruption coverage dispute.] Insurers are threatening constitutional challenges in the hopes of preventing passage in the first place. If states pass such laws anyway, will courts strike them down? Article I, Section 10, Clause 1 of the U.S. Constitution states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. (Emphasis added.) The U.S. Supreme Court has stated that the so -called “Contracts Clause restricts the power of States to disrupt contractual arrangements….That includes, as here, an insurance

policy.” (Sveen v. Melin (2018) 138 S.Ct. 1815,

However, the Sveen court makes clear “not all laws affecting pre-existing contracts violate the [Contracts] Clause.” (Sveen v. Melin, supra, 138 S.Ct. at p. 1821.) Courts use a twopart test to determine whether it is violated. A law violates the Contracts clause if it “operat[es] as a substantial impairment of a contractual relationship” unless it “is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose.” (Id. at pp. 1821-1822.) Note that the Contracts Clause is limited to the states—it does not apply to Congress. While states are the primary regulators of insurance, Congress has certainly ventured into the insurance are-

na (e.g., ERISA, ACA), but with the polarization in Congress, action seems unlikely. If Congress does not act, will state action pass constitutional muster? Starting with the second part of the test, does requiring insurance companies to cover businesses for business interruption “advance a significant and legitimate public purpose”? In California, “the remedying of a broad and general social or

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

economic problem” constitutes such a pur-

pass muster.

pose. (20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1269.)

Moreover, a law requiring carriers to provide

Given the enormous number of interrupted

pair an insurance contract so much as further

businesses—only a small portion of which

its purpose (See Sveen, supra, 138 S.Ct. at p.

have business interruption insurance—but

1822), which is to ensure that companies

the still huge economic impact from the po-

have the financial support necessary to sus-

tential failure of those, it is not hard to argue

tain business operations in the event disaster

that the law would meet this part of the test.

occurs. (See, e.g., Buxbaum v. Aetna Life & Cas.

Moreover, with proper care in drafting, it is

Co. (2002) 103 Cal.App.4th 434, 444.)

easy to envision that the law could be fashioned in “an appropriate and reasonable way” and hence meet all of the requirements of this part of the test.

business interruption coverage would not im-

California has issued a warning to insurers not to discourage policyholders from filing business interruption claims. It may also have

That takes us to the first part of the test:

been meant as a warning to honor those policies or face legislation. If so, it did not get

whether such a law “operat[es] as a substantial impairment of a contractual relationship.”

through to the French Laundry’s insurers. It is too early to assess the likelihood of legisla-

“In determining the extent of the impairment,

tion, but if it comes to pass, it seems likely

[courts] are to consider whether the industry

that it can be crafted so as not to run afoul of

the complaining party has entered has been regulated in the past.” (20th Century Ins. Co. v.

the Contracts Clause.

Superior Court, supra, 90 Cal.App.4th at p. 1269 quoting Energy Reserves Grp., Inc. v. Kansas Power & Light Co. (1983) 459 U.S. 400, 411.) While the freedom to contract is strong in the insurance industry (Farmers Ins. Exch. v.

Cocking (1981) 29 Cal.3d 383, 390), “it is a highly regulated industry, and one in which further regulation can reasonably be anticipated.” (20th Century, supra, 90 Cal.App.4th at p. 1269.) In 20th Century, a statute reviving time-barred claims stemming from an earthquake passed constitutional muster under the Contracts Clause, which certainly lends sup-

View this article at Marinbar.org

port to the conclusion that a law requiring one particular type of coverage would also THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Omaha daily bee. (Omaha [Neb.]), 05 Oct. 1918. Chronicling America: Historic American Newspapers. Lib. of Congress. Audubon County journal. (Exira, Iowa), 28 Nov. 1918. Chronicling America: Historic American Newspapers. Lib. of Congress. Omaha daily bee. (Omaha [Neb.]), 10 Oct. 1918. Chronicling America: Historic American Newspapers. Lib. of Congress. THE MARIN LAWYER An Official Publication of the Marin County Bar Association

BOOK REVIEW FAIR HOUSING Proving Santayana: Pale Rider's History of the 1918 Spanish Flu Shows How Little We Remember CHARLES DRESOW

“Those Who Cannot Remember the Past Are

economy and public health are rarely

Condemned to Repeat It.” – George Santayana

aligned, and elected representatives defending the first two undermine the

third, simply by doing their job.

he 1918 flu pandemic spread further ill-

ness and death around the world just as the First World War was drawing to a conclu-

Spinney fleshes out similar insights, showing us that COVID-19’s challenges are not

sion, infecting as many as 500 million people and killing anywhere from 17 to 100 million.

“unprecedented,” but entirely predictable from the events of 1918. Even controversy

Despite its enormous impact, it largely became a historical footnote to the war, over-

over the naming of each disease shows striking parallels. 1918’s Spanish flu gained its

shadowed in history books by the war and then by the Great Depression and World War

name when Spain was the first country to openly report about the outbreak. The flu did

Two. This pandemic is commonly (but inaccurately) referred to as the Spanish Flu. In her

not begin in Spain. It very well may have more accurately been called the American flu be-

fascinating book, Pale Rider: The Spanish Flu of 1918 and How it Changed the World (Public Af-

cause the first recorded outbreak occurred at an army camp in the United States. Army

fairs, 2017), author Laura Spinney describes the root causes of the pandemic and its im-

troops spread it to the east coast of the United States and

pact on the world. Fascinating, but surreal: Surreal to read how similar the political and

then into Europe via troopships

societal turmoil the pandemic caused were to what is happening today, as we experience

carrying soldiers to fight in the

the gravest pandemic since that time:

trenches of

The competing interests of the collective are the reason that historian Alfred Crosby, who told the story of the flu in America, argued that democracy was unhelpful in a pandemic. The demands of national security, a thriving

France. The warring powers censored all reference to the illness spreading through their

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

ranks because they feared defeat from letting

reportable and the fact of the pandem-

enemies know their weakness. Little did they know that the flu was impacting all the war-

ic had been acknowledged, a raft of social distancing measures were put in

ring armies. Since Spain was not involved in the war, its papers freely reported on the epi-

place—at least in countries that had the resources to do so. Schools, theatres

demic, hence the “Spanish Flu.”

and places of worship were closed, the use of public transport systems was re-

Spinney does an excellent job describing the cultural and political aspects of the 1918 pandemic. Parallels with our current pandemic

abound. Take for example this recent news item: May 28, 3:05 p.m. The City of San Francisco is now requiring that individuals wear masks whenever they leave their homes and interact with people outside their households. The city previously only required

masks in mostly indoor situations, but it now mandates that individuals wear masks when exercising less than 30 feet from others or when passing people on the sidewalk. During a Thursday press conference, Mayor London Breed stated that businesses have the right to turn away any individuals who are not wearing masks, but asked that individuals not confront non-mask-wearers. (Graff et al., Coronavirus Updates: San Francisco Imposes Stronger Mask Requirements (May 28, 2020) SFGate [as of May 31, 2020].)

And compare it to this passage from Pale Rider: In 1918, as soon as the flu had become

stricted and mass gatherings were banned. Quarantines were imposed at ports and railway stations, and patients were removed to hospitals, which set up isolation wards in order to separate them from non-infected patients. Public information campaigns advised people to use handkerchiefs when they sneezed and to wash their hands regularly; to avoid crowds, but to keep their windows open (because germs were known to breed in warm, humid conditions). Although Pale Rider is dense with interesting facts, anecdotes, and statistics, it is not a difficult or laborious read. Spinney writes well, always illustrating her points with well-chosen examples. She does a particularly good job relating political history and describing the societal change caused by the 1918 pandemic, exploring how societies and political systems fell or rose as a direct result of the pandemic. The pandemic may have played a role in the Bolshevik victory in the Russian Civil War, replacing the tsars with the Soviet system, and a strong argument can be made that American President Woodrow Wilson was a victim of the flu. Spinney concedes that the course of

history is a complex interplay of different

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

events but convincingly argues that the 1918

pandemic had a tremendous impact of the course of the Twentieth Century. After finishing the book, I was left to ponder what longterm impact our current pandemic will have on the course of human history. View this article at Marinbar.org

Charles Dresow is a partner at Ragghianti Freitas LLP. His practice focuses on representing those accused of crimes. EMAIL | WEBSITE

MCBA Member Listserv for Practice Areas MCBA's new listserv with Groupvine is up and running. The practice area email groups are a convenient way to communicate and can be especially helpful at this time due to the many challenges from COVID-19 that impact both you and your clients. MCBA Members can join the listservs by clicking HERE. Signing up with your name and email address adds you to the MCBA-wide listserv. You can then check the boxes to be added to listservs for your specific practice areas. Because the listservs are opt-in, MCBA must approve each signup before you can send or receive emails. Once you have been approved, use the following email addresses to email the listservs for your practice area(s): All MCBA mcba@groupvine.com ADR Section adr.mcba@groupvine.com Barristers Section barristers.mcba@groupvine.com Business Law Section business.mcba@groupvine.com Construction Law Section construction.mcba@groupvine.com Criminal Law Section criminal.mcba@groupvine.com Diversity Section diversity.mcba@groupvine.com Employment and Labor Law Section el.mcba@groupvine.com Probate and Estate Planning Section ep.mcba@groupvine.com Mentor Group mentorgrp.mcba@groupvine.com Family Law Section familylaw.mcba@groupvine.com Intellectual Property Section ip.mcba@groupvine.com Litigation Section litigation.mcba@groupvine.com Probate Litigation Section probatelit.mcba@groupvine.com Real Property Section realproperty.mcba@groupvine.com Tax Law Section tax.mcba@groupvine.com

Note: The listservs are for MCBA Members only.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

NONPROFIT PROFILE FAIR HOUSING The Center for Volunteer & Nonprofit Leadership: Helping Nonprofits Help Others NESTOR SCHNASSE

any who want to help during the current COVID-19 pandemic don’t know

less of the limelight. Second responders work to clean up the ravages of a disas-

how to get involved in a meaningful way, something generally true during and after dis-

ter area, stabilize infrastructure and help return regions to normal opera-

asters. A fellow Scout leader, who works at

tions. Although they may not literally

the Marin Community Foundation, shares my

be putting out fires, those who work in

interest in promoting community service among Marin’s youth. Our conversation re-

the nonprofit sector play a vital role in disaster recovery.

cently turned to coordinating volunteer efforts during the pandemic. My colleague had high praise for the remarkable job the Center for Volunteer & Non-

CVNL operates Emergency Volunteer Centers (EVCs) in Marin, Napa, Solano, and Sonoma Counties. EVCs act as clearing houses, engaging spontaneous vol-

profit Leadership (CVNL) does solving this problem.

unteers and matching

I reached out to CVNL’s

them with community needs. Trained emergen-

Director of Marketing and Communications,

cy personnel staff each EVC and provide volun-

Katelyn WilloughbyBagley, who was quick to pay respects to the

teers a one-stop location to learn where help is needed and determine

role of trained professionals when a disaster strikes, “We are incredibly grateful to our first

how they can best help. Nonprofits with disaster-related volunteer opportunities can

responders, who put themselves in danger to

post on CVNL’s Volunteer Portal for free and

save lives.” CVNL’s role begins after that:

can even get support with postings or related questions by emailing volunteering@cvnl.org.

What happens when the critical first response work is completed—once the

During the current crisis, food is one pressing

victims have been transported, the injured treated, and fires suppressed?

need among many. SF-Marin Food Bank is having an enormous impact reducing food in-

The workers on the scene in the days, weeks, and months after a disaster see

security, along with many other nonprofits making a difference. After a few clicks on

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CVNL’s website, anyone can choose from a

advice for boards of directors, and ways to

host of meaningful ways to help within their community. From my office in San Rafael, I

advocate for the nonprofit sector.

see there is a need for help with food preparation at the Ceres Community Project 3 miles away. The Ritter Center a mile away needs help with its food pantry. Homeward Bound needs help sewing masks. Opportunities abound.

Willoughby-Bagley noted that, “CVNL has a long history in disaster preparedness, response, and recovery.” One secret to its success has been, “recognizing that volunteers are a more valuable resource when they are trained, assigned, and supervised within established emergency management systems.”

CVNL goes beyond matching volunteers, tak-

Not surprisingly, volunteers are urgently

ing a holistic approach to supporting non-

needed to help the community respond to

profits by offering comprehensive programs

challenges related to COVID-19. Critical vol-

to assist both nonprofits and volunteers with

unteer roles include food distribution and

key needs, including: (1) an impressive range

packing and delivering supplies. CVNL has es-

of training in areas such as planning and com-

tablished a volunteer page specific to ad-

munication; (2) assistance with executive

dressing ongoing community needs related to

search and succession planning; (3) consulting

the pandemic.

services for boards, staff and volunteers; and

(4) corporate engagement strategies to help companies develop Corporate Social Responsibility plans and prepare to coordinate a response when disaster strikes. CVNL has a comprehensive resource page, providing access to resources like a “Stronger Together” webinar series, designed to equip and support leaders during this health crisis, and curated information relevant to the needs of non-

For those with risk factors that prevent volunteering in person, “CVNL also helps oversee and manage physical and monetary donations by distributing them to nonprofit agencies helping individuals directly affected.” It has established a fund to support disaster services: Click here and select “Support COVID19 Relief Activities” to make a donation. View this article at Marinbar.org

profits, including volunteer management tips,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE BROCKBANK POLITICAL REPORT FAIR HOUSING March Primary Results and a Preview of the November Election: Musings on the Longest Local Ballot Ever and Party Prospects in Sacramento and D.C. GREG BROCKBANK Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.

ARCH PRIMARY ELECTION

You may recall that California’s March primary election was usually in June, but moved to March starting this year, although we’ve tried that twice before in recent decades and then gone back to June. You may also recall that

the vast majority of our local, nonpartisan elections have been held for decades in November of odd-numbered years, but a new law forced Marin to move them to evennumbered years for the higher turnout (especially in presidential elections). There are all kinds of problems with that philosophy, but it’s done, and this year is the first year of having every local election in even-numbered

years. Most jurisdictions chose November, so there were few potential races in March, fewer actual races, and no surprise results. Nonetheless, we still did vote for some notable offices. County Supervisor. There were three seats for county supervisor (of the five) up in March, as has been the case

for decades. It’s not unheard of for at least one of them to go unchallenged, which is what happened this time in the Ross Valley district

of veteran Supervisor Katie Rice. In West Marin and Corte Madera (and parts of Mill Valley, Greenbrae, San Rafael, Novato, and Corte Madera), Supervisor Dennis Rodoni won a second term easily against perennial (but underfunded and unendorsed) candidate Alex Easton-Brown. In Southern Marin, Supervisor Kate Sears announced her retirement early last year, and the immediate favorite (and big winner) was three-term Mill Valley Councilwoman Stephanie MoultonPeters. The Board of Supes remains in good hands! City Councils and Sanitary Districts. In Ross, voters returned incumbents Elizabeth Brekhus and Paul (“Beach”) Kuhl (both attorneys) to office, and elected new

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

candidate Charles Kircher (also an attorney!)

tricts have more than one. Filing opens in mid

to replace a retiring colleague for the third seat. Voters in Mill Valley re-elected incum-

-July and closes in mid-August, as usual for November elections, at the Registrar of Vot-

bent Sashi McEntee, the only incumbent running for another four-year term, as one (Jim

ers’ office at the Civic Center (or, in the case of council elections and the San Rafael Board

Wickham) was unopposed to finish the final two years of a recently retired colleague

of Education, the city halls.) We won’t know how many races end up contested and on the

(signaling his retirement in two years), and another one stepped down entirely. Urban

November ballot until the close of filing in mid -August. I’ve also listed the number of current

Carmel was actually the top vote-getter, hav-

officeholders in each category. (See Figure 1

ing served on dozens of local boards, and the

on page 55.)

third contested seat went to another new candidate, Tricia Ossa, beating out young ac-

City Councils.

tivist Max Perrey and second-time candidate Kirk Knauer.

San Rafael will have not just one, but five po-

In Tiburon, Jack Ryan beat out Daniel Amir and Kathleen Defever to fill out the final two

cilmembers in separate district races for the first time (with another two in districts for the

years of a retiring councilmember. In Corte

first time in two years). They are also holding

Madera, two incumbents stepped down but

their city attorney and city clerk “races,” but

only two candidates filed to replace them; hence, no election. The new councilmembers

the incumbents are rarely opposed, even though the jobs pay real money, unlike most

are Fred Casissa and Charles Lee. Finally, only the incumbents filed for re-election in both

elected positions that have actual policy responsibilities. Mayor Gary Phillips announced

the Ross Valley Sanitary District (Mary Sylla and Doug Kelly) and the Almonte Sanitary

last year he would step down at the end of this term, and Vice Mayor Kate Colin is al-

District (Lewis Kious, Robert Cox, and Anne Lahaderne).

ready running to replace him (and is, in my

NOVEMBER’S LOCAL BALLOT Eight types of government bodies have elections scheduled for November. My chart below gives you an idea of the large number of contests the Marin Registrar of Voters will be contending with. I have listed the number of potential races in each category; most dis-

tential races. The voters there elect their mayor separately, and will elect two coun-

opinion, a prohibitive favorite). Other cities with incumbent councilmembers whose seats are up in November (we often won’t know if they’ll actually run again until the close of filing in mid-August) include Belvedere (Nancy Kemnitzer, Claire McAuliffe, Robert McCaskill), Fairfax (Bruce Ackerman, Barbara Coler, John Reed), San Anselmo (Brian Colbert, Alexis Fineman, John Wright)

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

, Sausalito (Joe Burns, Ray Withy),and Tiburon (David Kulik and Holli Thier). Figure 1: Number of Current Officeholders.

*The number of potential races is actually even a little bit higher because the San Rafael and Novato School boards, and possibly two or three others, continue to move to district instead of at-large elections, so there will be some brand-new one -seat “districts” within various school districts. What used to be one big race will now be several smaller ones in each jurisdiction.

School Districts.

Some people think that Marin’s 19 school districts are far too numerous and we should consolidate. They might be surprised by County Superintendent of Schools Mary Jane Burke’s presentation on how Marin consolidated many decades ago from about twice as many as we have now. Polling shows most residents really like having their local neighbors be in charge of their local schools, rather than some larger, regional entity. All 19 will be on the ballot. Marin’s school districts range in size from “medium” (by state standards), e.g., Novato Unified, Tamalpais Union High, San Rafael, and Novato, to slightly smaller or much smaller: Kentfield, Lagunitas, Larkspur, Mill Valley, Miller Creek (formerly Dixie), Nicasio,

Reed, Ross, Ross Valley, and Sausalito, to a couple of the remaining six one-room schoolTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

houses in California, each with its own school

Community, Inverness and Mesa Park), and

district: Lincoln and Laguna. (Although I’ve never known anyone on those one-school

two Water Districts (Marin Municipal and North Marin), and three one-district catego-

boards, I’ve noticed that some of the trustees stay on for decades.)

ries: The Marin Healthcare District, the Strawberry Recreation District, and the Mar-

Of the 45 incumbent school board members

in Resource Conservation District.

whose seats are up in November (too many to

The big one, voter-wise, has usually been the

list before most readers’ eyes would glaze

Marin Healthcare District, which covers

over), probably somewhere between a quar-

most of Marin except Novato and West Mar-

ter to a half of them will not run for re-

in, and has in decades past been the site of

election, and another half will be in uncon-

pitched battles pro- and anti-Sutter, as well as

tested “races” that don’t get on the ballot be-

over other issues, but in recent years has

cause the number of candidates did not ex-

“settled down” into a surprisingly noncontro-

ceed the available seats. That may mean only

versial body, with long-time incumbents who

8-10 or so of the 24 potential races actually

didn’t used to get along but now do. The seats

appear on the ballot, usually with most but

of two of them are up in November, Harris

not all of the non-retiring incumbents.

Simmonds and Anne Sparkman, who are run-

Special Districts. These districts (comprising everything besides the county offices, city and town councils and other municipal offices, and school district trustees) represent 28 or more potential races for 66 elected officials whose seats are up – about half November’s total. The three biggest categories are: the seven Sanitary Districts (Alto, Homestead Valley, Las

Gallinas Valley, Novato, Richardson Bay, Sausalito-Marin City, and District No. 5 – Tiburon), the six Community Services Districts (Bel Marin Keys, Marin City, Marinwood, Muir Beach, Tamalpais, and Tomales Village), and the six Fire Protection Districts (Kentfield, Novato, Sleepy Hollow, Southern Marin, Stinson Beach, and Tiburon). There are also three Public Utilities Districts (Bolinas

ning for second and third terms, respectively,

and I expect they will run again and win reelection without much controversy—there seems to be no organized opposition or factionalism as there was in the past. Some Community Services Districts (CSDs) are pretty quiet and, like most special districts, rarely even have contested elections, but others are more controversial, like the

Marin City CSD, which almost always has an election. The last one featured slates, along with a candidate who won the final seat by one vote. It will be interesting to see how much the controversy over the SausalitoMarin City School District will spill over, if at all, into the CSD race. And last time the CSDs elected directors, three different districts had all the incumbents run for re-election (which isn’t unusual), with each district having one

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

lone challenger (which is). Even when some-

these days). Filing for all these offices (except

one steps down (which is rare—they often stay on for decades), it would be unusual to

city councils) is at the County Registrar of Voters’ office (if it’s open, which it wasn’t as of

have a contested election. One of the challengers won last time, in the Las Gallinas Val-

this writing) and runs from mid-July to midAugust. The Registrar did complete the

ley: a bright young water engineer who works for MMWD beat a typical incumbent who

March election, and is preparing for hopefully a fairly normal November election (even if

thought he didn’t have to campaign much, if at all, because he hadn’t had to for decades.

every registered voter must now be mailed a ballot—that’s no big deal in Marin, as the vast

Fire Protection Districts (FPDs) are for cities like Novato that don’t have their own municipal fire departments, and may also exist to give special or enhanced coverage to specific unincorporated areas above and beyond the coverage the Marin County Fire Department can give. I’m hard pressed to think of any controversies in any of them in recent decades. Probably the most significant—and I use the

term loosely—event was when the Southern Marin FPD increased its board from five to seven members. Sanitary Districts (SDs), on the other hand, seem to have had more than their share of controversy, especially the Las Gallinas SD and the Ross Valley SD—spills caused by negligence, property disputes with neighbors and

buyers and sellers, you name it. These are all thankless jobs, in many ways, usually without pay (or nominal pay at best), but thank goodness for the good-hearted and nearly all quite capable community volunteers who review the staff reports and make policy decisions, and hire, evaluate and sometime fire the chief executive officer. You, too, can run for any of these positions: check out their websites and attend their meetings (presumably via Zoom

majority already get mailed a ballot). LOCAL, STATE, AND NATIONAL RACES FOR STATE LEGISLATURE AND CONGRESS Other than the presidential race (which is always the race that most people are most interested in, by far), this is a slow year for other partisan races, at least here. We have no U.S. Senate race this year, and the statewide elected office races are still two years away. It’s true here and elsewhere that incumbent state and federal legislators have high odds of getting re-elected, but at least every six years, term limits would have forced a State Assembly member to step down, and there would be a high-profile race for their replacement. With the changes to term limits early in this past decade, that’s now more often 12 years, and our Assemblyman, Marc Levine, is 7 ½ years in, so he’s got a while yet (although things will start heating up for his replacement immediately after he is elected to his final term in 2 1/2 years). Our Congressman, Jared Huffman, has been in office for the same amount of time, but has no term limits, so he could be there for decades, (which

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

would be good, since he’s outstanding, but

until November).

personally I’d like to see him appointed as Secretary of the Interior under President Joe

Nationally, although the GOP talks about tak-

Biden).

ing back the House, that isn’t going to happen either. In fact, the Democrats may pick up a

Democrats in Sacramento have made incre-

few more seats but it won’t be easy, as they

mental gains for several decades now, to the

got all the easy ones in 2018. Taking back the

point where they’ve passed the two-thirds

Senate has always been an uphill climb for the

supermajority needed to ignore the Republi-

Democrats, even though there are twice as

cans completely if the Democrats all stick to-

many Republican seats up this year as there

gether, (which usually most of them do, and

are Democratic seats, but most of the red

budgets, tax increases, and placing measures

seats are in quite red states, so the odds of

on the ballot all require a two-thirds vote).

beating a Republican incumbent are pretty

Republicans have made noise about cutting

slim in most of them.

into that Democratic supermajority and taking back some seats the Democrats have flipped recently, but it’s probably just that— noise—as the blue trend has shown no signs of abating in California. Similarly, after the

Democrats flipped seven California Republican House seats in 2018 (half the GOP’s total), the GOP is fighting hard to win at least some of them back, and in fact, a few Republican candidates came in first in a few of the spirited primary races, which you will recall are all now races where the top-two go on to the general election regardless of party. But in those races, when the eliminated Democrats’ totals in the March primary are combined with the total of the (recently) incumbent Democrat, along with November having better Democratic turnout (especially in presidential elections), I’ll wager that none of those new Democratic House members in California lose their seats this year (notwithstanding Mike Garcia's special elec-

tion win in May to serve out Katie Hill's term

The current Senate count is 47 Democrats (including two independents who caucus with the Democrats—Bernie Sanders and Angus King), so they’d have to pick up four to have a tie (counting the expected Alabama loss), and five to have a majority, something that was always against the odds. But as of early May, pollsters like Five Thirty-Eight’s Nate Silver and the New York Times’ Nate Cohn now give slight odds in favor of the Democrats taking back the Senate. In part, that’s because Trump’s approval ratings are starting to fall (finally), as he was expected to run primarily

on a strong economy, which has now crashed. Many of the swing states also have swing Senate races, including some of those mentioned immediately above, where a falling economy and a falling Trump may help drag down a few Republican Senate incumbents as well. So the Democrats may take the Senate after all, and of course keep the House, something we’ve dreamed of for three and a half years

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

now, but which seemed just out of reach until

us predicted an implosion almost as soon as

Trump’s recent decline.

he took office over three years ago but nothing until now has noticeably dented his sup-

THE PRESIDENTIAL RACE

port.

For over a year now, I’ve been writing every two to three months about the presidential race, but really only about the Democratic primary, which had a huge number of (mostly quite good) candidates. While Joe Biden was the frontrunner most of the time, I and others thought he was a little fragile, and might lose frontrunner status and in fact did, early this year, just before and during the period when he lost the first three primaries. But he went almost immediately to presumptive nominee when he won the fourth primary, in South Carolina, by a larger than expected margin, and then did better than expected by winning most of the large number of Super Tuesday states a few days later. And he has won virtually every state since then, including some by two-thirds margins where Bernie Sanders won four years ago by two-thirds margins. I would have guessed that Biden would do about the same as Hillary Clinton did four years ago, which is one reason the general election race has been predicted to be close, at least until the past month or two. But unless Joe Biden is turning out to be a much stronger candidate than Clinton was, which seems unlikely despite his suddenly easy primary victory over Sanders, it’s more likely that Trump is finally imploding, no doubt over the economy and perhaps his handling of the

response to the novel coronavirus. Many of

Different “experts” will give you different answers as to the number of swing states, but let’s say it’s somewhere between seven and 15. Biden currently leads Trump in all of them. Biden could afford to lose a few and still win

the presidency, but Trump has to win them all, and the trend in recent months and weeks is clearly in the blue direction. As of the first week in May, Biden now has enough states in which he has a five percent or greater (that’s five percent beyond the margin of error) lead in the polls to get to 270 electoral votes, so he’d have to drop dramatically for Trump to win. But they say a month is a lifetime in politics, and we’ve seen, as predicted, that Biden is more than capable of the kind of gaffes that can damage him (although why that doesn’t seem to apply to Trump remains one of the great questions of modern politics). Also, sometime this summer, pollsters will start counting only respondents who “intend” to

vote in November, as opposed to just “registered voters,” and that change shifts the numbers one to three percent in favor of Republicans. Remember that in 2016, Clinton was ahead by about two percent in most or all of the upper Midwest states she ultimately lost by less than one percent. But “energy,” motivation, new voter registration, and the youth vote all point to a bigger

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

than usual turnout of people motivated by,

So if the Democrats take the House, Senate

perhaps primarily, dislike of Trump and his policies. 2018 was a pretty big blue wave, es-

and presidency, will this be the end of the Republican Party? Its obituaries have been writ-

pecially for a mid-term election, but there were two blue waves in a row in 2006

ten prematurely before, and ones for the Democrats as well, but the two major political

(Democrats re-took the House and made Pelosi Speaker for the first time) and 2008

parties have reinvented themselves several times in the past century or two. For example,

(Obama’s election, and Democrats re-taking the Senate). I predict 2020 will be like 2008,

the Republican parties of Abe Lincoln, Teddy Roosevelt, Dwight Eisenhower, Richard Nix-

and make it two blue wave years in a row.

on, George W. Bush, and Donald Trump have

Democrats (including me) were too complacent four years ago, thinking Clinton had it in the bag. We were relying on polls (which we hadn’t noticed were tightening, especially in the last week, when there was little polling), and then-FBI Director James Comey chimed in with “I found another computer with more of Hillary’s emails” nine days before the elec-

tion. Comey’s “nothing new to see here” came two days before the election, which may have

all been quite different, so while I think Trump damaged the Republican party, and the Democrats may benefit from that for some years (decades?) to come, Americans don’t seem to like one-party rule indefinitely, which explains why they have elected presidents from different parties every four to eight years since FDR (except George H.W. Bush’s single term after Reagan’s two terms). This year may in some ways be similar to

been too late to undo the damage. This time

2008, when George W. Bush was a lame duck,

we are determined not to be so complacent,

with terribly low approval ratings, and the

and although every presidential election year

clear inability to keep the economy from

there are a few new organizations founded to do better next time, this year there are more

crashing further. It fell to Barack Obama and John McCain in the final months of the cam-

than ever, not just calling swing states, but text-banking, post-carding, and engaging in

paign to try and come together and develop bipartisan consensus on a rescue plan for the

other new methods of voter persuasion.

economy, and of the two, Obama emerged as the leader, which may have contributed to his

Some Democrats fear an “October Surprise,” although I feared that in 2018, and it didn’t

electoral success immediately thereafter.

happen. Some think Trump will try to cancel the election, or won’t leave office after he los-

As far as what effect such a Democratic victory would have on our laws, I’ve long felt that

es, but I think the states will hold the election regardless of what Trump says, and virtually

Trump has unreasonably targeted every Obama law and regulation he could get his

the entire country will answer to the newly

hands on to reverse, just out of petty, imma-

sworn-in president.

ture spite, but the truth is I’d be happy if

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Biden and the Democrats reversed as many

as possible of Trump’s laws and regulations. We have a lot of repairs to make, domestically and internationally. I’ve always been proud to be an American (like most of us, I assume), and I hate being embarrassed about it, as I am now, and having to apologize for our Presi-

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Silver

dent. Maybe next year, we can start to resume our natural position as a leader among the world’s nations, instead of the laughingstock and obstacle to world progress we are now. View this article at Marinbar.org

Greg Brockbank is a 30-plus-year attorney and civic and political activist, having served for 22 years on the College of Marin Board of Trustees and then on the San Rafael City Council. He is the senior member and immediate past chair of the Marin Democratic Party governing board and has attended 30 state Democratic conventions. For over 20 years, he has provided numerous groups with detailed lists of the contact info for all candidates for Marin’s local offices, and appears as a commentator and election-night co-host on public access television. EMAIL | WEBSITE

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THE MARIN LAWYER An Official Publication of the Marin County Bar Association

DIRECTOR SPOTLIGHT FAIR HOUSING Emily Charley THE MARIN LAWYER

he Marin Lawyer spoke with one of

I was meant to

MCBA’s new directors, Emily Charley, to

be anyway.

learn more about practicing and living in Marin. 1. What is your practice area?

4. Why do you live in Marin?

I am a commercial litigator at the law firm of

As a Kansan originally, I

Hanson Bridgett LLP, with an emphasis on re-

might not be

al estate matters. I also serve as Associate General Counsel, ensuring we meet high

the ultimate authority on

standards for legal ethics and professional conduct.

the best locations. But that said, I can’t think of a better place than Marin. It is blessed with

2. Do you have a particular emphasis?

both stunning nature and access to big city perks, and you can be a part of a community

I enjoy trial. I started out at the San Mateo District Attorney’s Office knowing I would be in the courtroom every day. When I transferred to civil practice at Hanson Bridgett LLP in 2007, my love of the courtroom was not diminished, and I look for cases that benefit from a trial attorney. 3. Why did you become a lawyer?

I graduated with a biochemistry degree, and was working at UCSF’s Cancer Research Center before heading to veterinary school. Or so I thought. One fateful evening, I got into a debate about civic participation with my older sister. It ended with her smugly recommending I go to law school and then revisit the issue with her. So I did. Given that was my response, I think it is clear law school was where

here. I am friends with my neighbors, I can bike to the store, and my son can color on the sidewalks with chalk. 5. What do you love to do when you’re not practicing law? This has changed considerably. I used to be a traveler and adventurer, from scuba diving in Sri Lanka to motorcycle racing in Italy to cliff jumping in New Zealand. Now, I enjoy spending time with my five-year old son, Sebastian, and hoping he is not drawn to do the same things I was in my youth! 6. If you could pursue any other career besides law, what would it be and why? I would be a large wildlife veterinarian who does not get side-tracked by her older sister.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

7. Why did you join MCBA?

MCBA

When I moved to Marin in 2014, I wanted to know my legal community and I wanted to utilize the benefits that membership offered.

MEMBERSHIP BENEFITS

8. Why did you become a director? Having benefited from being a member and been embraced by the legal community, I

Networking & Community

wanted to participate even more. Hanson Bridgett LLP encourages its staff and attorneys to be as involved as possible, and MCBA seemed an obvious choice.

Learning & Education Volunteer & Leadership Opportunities Professional Credibility

View this article at Marinbar.org

Lawyers in the Library is a collaboration between the Marin County Law Library and the Marin County Bar Association, offering free legal advice for self-help litigants. Volunteer MCBA lawyers meet with litigants in 20 minute intervals in the areas of family law, probate, civil and small claims, and landlord tenant matters. The clinic is held the second and fourth Thursday of each month with the exception of holidays. VOLUNTEER SIGN UP

Thank you for your service to the community!

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

WEBINAR RECAP FAIR HOUSING Family Court Update on COVID-19 Response KRIS CIRBY MCBA circulated this Family Court update shortly after

except in the very rare discretion of the

meeting with the Court on May 19th. The content is still relevant but since the Court has reopened in June, you

Court.

should check with the Court to see whether policies and procedures have been updated before relying on infor-

The judges then responded to questions sec-

mation herein.

n May 19, 2020, MCBA’s family law section held a webinar with all three

Marin family court judges on the Court’s response to COVID-19. Judge Adams welcomed everyone and gave an overview of the Court’s current status. She let everyone know that all the judges and their families are well and that there have been no

COVID-19 cases among court staff. She praised the court administrative and clerical staff for an excellent job complying with social distancing requirements on an ongoing basis. Judge Adams reminded everyone that the status of the Court is constantly evolving, with the judges receiving new data and new instructions every day. So far, the Court has been conducting only ex parte and DVRO evidentiary hearings. If all goes as expected, the Court and clerk’s office will open on Monday June 1, 2020. However, when the Court reopens, court access will be extremely limited, with continued social distancing and other mandates for the safety of everyone. No members of the public will be coming to court,

tion members had submitted in advance.

Will the court reopen on June 1? What protocols are in place to safeguard at-risk clients and lawyers? The Court is currently operating under Government Code section 68115, which gives the Court emergency authority for 30 days at a time. Presiding Judge Sweet has issued administrative orders implementing this authority. The most recent one, dated April 28, 2020, provides for emergency operations until the end of May. The court anticipates opening June 1st. When the Court reopens, it will look very different. One courtroom will handle all family law cases and the Court will use technology to conduct its business remotely. It will primarily use Zoom (video) and VCourt (telephone). The Court asks that you familiarize yourself with Zoom technology before you need to appear. It has already been conducting DVRO hearings via Zoom and the morning after the webinar, released Remote Access Procedures, which outline the rules for appearing remotely, including the technological

steps. Clerks will be contacting those who

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

have matters on the calendar and providing

the links to Zoom hearings. Please check www.marincourt.org for any updated orders

please). •

lines: The Court’s expectations are that

and information.

parties will follow these guidelines. The Court encourages parties to review them.

What is being worked on or considered to improve access during closure now or in the future for non-emergency issues or hearings?

Family law custody and visitation guide-

•

Evidence at hearings: In addition to being submitted in advance to the Court and op-

The Court is mindful of the access barriers

posing counsel, all evidence will need to be

imposed on litigants and attorneys with the court closure. The Court is operating with a

displayed through Zoom, regardless of whether it is a video, photos, or documents. The judges emphasized that you

skeletal crew at the courthouse to provide service.

must check your Zoom settings. In one recent hearing, Judge Adams was shown a

It has already issued guidelines on how to file

text on a cell phone but the words were mirror imaged. As noted above, the Court

DVROs (pdf) and has continued to issue temporary restraining orders. A family law judge

has issued Remote Access Procedures.

has been present at the courthouse every day

to hear ex parte applications and review TROs. Court staff has been contacting participants to instruct them in appearing remotely. •

Bandwidth issues: The Court anticipates that bandwidth will impose limitations on its ability to conduct business, as all technology is shared with the County of Marin. The Court does not know exactly what the order and timing of cases will be as the family court has to share with other courts, including criminal courts, which have priority. The Court asks all of us to have patience as everyone moves forward.

•

Legal Self-Help Center: Self-represented litigants should call 415-444-7130 to obtain additional assistance (no attorneys

•

June Law and Motion will go forward: Gretchen Van Voorhies is back at work preparing files for Law & Motion hearings. Courtesy copies are welcome, especially while the Court is closed. Please email them to the clerks or the general family law email. Please do not assume that any originals placed in the dropbox will be de-

livered to the judges during the court closure. If the court continued a hearing to a date you are not available, please contact the clerk for a new date. The judges do not yet know whether there will be a charge of $20 for a continuance.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

•

Evidentiary Hearings: These hearings will

of individuals into the courthouse, could or

take place via Zoom. The court does not

should Bench Bar settlement conferences be conducted with panel present and all others

know when in-person hearings may resume. Longer hearings will need to be truncated because of bandwidth issues. •

DCSS calendar: The Court will be meeting with Commissioner Longaker and DCSS to

The Court wants to have Bench Bar settlement conferences back up and running. Judge Adams has reached out to the judges pro tem to discuss handling them remotely, possibly

They are also updating the DCSS court-

using outside Zoom conferencing. Three Bench Bar Settlement Conferences are

room for videoconferencing. Please check

scheduled for late June and the Court will

the Court’s website for further updates.

have procedures in place by then. It is confi-

discuss restarting the DCSS calendar.

•

video conferencing?

Custody: For custody cases in which children are supposed to fly, the Court will make such determinations on a case-bycase basis. Judge Adams pointed out that, “Dr. Fauci recommends not flying, so who am I to question Dr. Fauci?”

dent that many Bench Bar conferences will be able to proceed via Zoom or other technology. How do we move our cases forward during closure? We have all provided our clients with the Court’s 4/28/20 order. The Court recommended watching for further updates on the court website. It also en-

•

Court reporters: Use the same process as

couraged everyone to talk to opposing coun-

usual.

sel to try to resolve cases via telephone and

Tentative Rulings: The Court will issue them beginning with June calendars, with the same process as usual to be followed.

Zoom. All Case Progress Conferences have been continued to a future date. Please check the court calendar for more information. RFO hearings can be set in July. Are discovery deadlines extended under the

•

Minors’ counsel: The Court made appointments for minors’ counsel before the shutdown. If you want the list, you may contact Ali Quam at the Legal Self-Help Center.

When will Bench Bar dates be available? Given the COVID orders limiting the number

current administrative orders? No deadlines have been extended and the discovery referee program is still operating. The Court encourages settlement of these issues. If the court closure is extended, can we get stipulations for private judges signed?

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

The Court has been signing stipulations for

be filed nunc pro tunc to avoid any injustice.

private judging and parent coordinators during the closure and will continue to do so.

Will there be a backlog of judgments and fil-

Will Petitions for Dissolution of Marriage be

the clerk’s office be processed?

accepted for filing before the end of June? How will the clerk's office handle all the filings that have not been submitted during SIP?

ings? When will documents left for filing at Currently, the backlog is not significant, and not the “tsunami” the Court expected. Diane Kallet is also back, processing Judgments. The

All filings submitted during the closure have

clerks have done a great job of organizing incoming documents but as set out in the previ-

been date-stamped as “received.” Presiding Judge Sweet has not decided as to when to

ous answer, the Court has not yet determined when filing will occur. The Court again em-

have pleadings file-stamped. There is also a question as to whether to file those pleadings

phasized that the nunc pro tunc option is available.

as of the date received or on the date filed. However, Judge Adams reminded everyone that the Court can authorize any document to

Source: data.marincounty.org

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Would the Court be willing to implement

etc. Case Progress Conferences will be held

signed stipulations for video settlement conferences during the court closure and/or fu-

via telephone through VCourt.

ture court closures?

As for logistics, as noted above, attorneys will need to plan ahead by sending exhibits ahead

The Court is ready, willing and able to sign stipulations to promote settlement. Submit

of time, via email to the Court and opposing counsel, as well as having third-party witness-

them via email. If one is already in the clerk’s office, please email the specific judge’s clerk

es available.

and they will try to locate the stipulation to have it processed. Will orders granting requests for child and spousal support be made retroactive to the date the RFO is served on the opposing party or only to the date the RFO is filed? The Chief Justice has issued Emergency Rule 13 providing that trial courts may make orders retroactive to the date of service. You

must re-serve after the RFO has been filed. Again, nunc pro tunc orders are available to prevent great injustice. How does video conferencing differ from court call? Does video conferencing have the advantage in allowing parties to present and

If your clients are non-English speaking, there is an interpreter function on the platform. There may be a need to move Law & Motion hearings to other times of the day or to other days to accommodate the other courts. Would video conferencing be beneficial to Family Court Services and the mediation process? Family Court Services will only be having telephonic appearances due to technology limitations. However, they will not be interviewing children via telephone based on privacy issues. If a counselor wishes to interview children, they will be brought into Court with social distancing guidelines adhered to.

look at documents?

Will the Court be hosting remote ISCs any-

The Court emphasized that attorneys’ patience is appreciated. Again, the Court will

The Court has been working with the ISC

have bandwidth limitations. Videoconferencing has the Court, the parties and attorneys on livestream video. VCourt is similar to a conference call. The Court hopes to conduct

time soon? committee to determine how to conduct these conferences. It is looking at having the panelists host via their own online platform because of the Court’s bandwidth concerns.

as much business as possible via videoconferencing, particularly Law and Motion and evi-

Again, in regard to the Court’s bandwidth limitations, criminal and juvenile cases have pri-

dentiary hearings. The Court prefers videoconferences to observe witness demeanor,

ority over family law, civil, and probate matters.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

What may the Family Law Section do to

help?

stand and appreciate that. She also reiterated her request that everyone

Judge Adams acknowledged that our family

have patience. We are going through an awful

law bar has always been extraordinary in its

time that is challenging and alarming. The

creativity and generosity. She asks that the bar please keep doing that. In addition to

Court supports you, just as you have supported the Court, for which the judges are grate-

what attorneys have already been doing, help each other with mediations, possibly by ex-

ful. “We are all in this together and we will only get better.”

changing services to mediate each others' cases. In addition, both Legal Aid of Marin and Family & Children’s Law Center could

MARIN COUNTY SUPERIOR COURT View this article at Marinbar.org

use volunteers. If you have any ideas, please email any of the judges. This is a great time to settle cases and the Court will do whatever it can to help facilitate settlements.

Kristine Cirby is a Family Law Attorney. She has over 25 years of experience in family law, with the last 20 years exclusively in Marin County. Kristine currently serves on the Marin County Bar Association Board of Directors as well as on the Board of Trustees for the Marin County Law Library. EMAIL | WEBSITE

Judge Adams further acknowledged that the

Court is very aware that attorneys have taken a financial hit because of this pandemic. The judges were all practicing lawyers and under-

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Contact Mee Mee Wong at 415-499-1314 or mwong@marinbar.org to become a Sponsor.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

UPCOMING EVENTS UPCOMING EVENTS WED | JUN 17 | 10:00-11:00A

THU | JUL 02 | 12:00-1:00P

GENERAL

ALTERNATIVE DISPUTE RESOLUTION

COVID-19 SERIES: Best Practices for PPP Loan

Unique Challenges & Best Practices of Remote Mediations

Forgiveness

INFO & REGISTRATION >

INFO & REGISTRATION > THU | JUL 02 | 12:00-1:30P THU | JUN 25 | 12:00-1:00P

MENTOR MEETING

BUSINESS LAW

Probate and Estate Planning

BANKRUPTCY BOOTCAMP

INFO & REGISTRATION >

Bankruptcy Basics: The process and practical actions to advise clients

NEW DATE: Spring 2021

INFO & REGISTRATION >

GENERAL MCBA Lifetime Achievement Dinner Honoring Gary T. Ragghianti

MCBA IS AN APPROVED PROVIDER AND CERTIFIES THAT THESE ACTIVITIES HAVE BEEN APPROVED FOR MINIMUM CONTINUING EDUCATION CREDIT BY THE STATE BAR OF CALIFORNIA IN THE AMOUNT OF 1 HOUR (PER CLASS).

MCBA Board Meeting on Zoom

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

A Note About MCBA’s Upcoming Events THE MARIN LAWYER

t the beginning of March, MCBA was

and events free to our members in order to

busy preparing for our upcoming events: Our March membership meeting on

support our members and help everyone adapt as easily as possible to these extraordi-

cannabis regulation, our annual celebration with Legal Aid of Marin of your extensive pro

nary new circumstances. We are staying in close contact with the Marin courts and dis-

bono contributions, a wonderful lifetime achievement dinner for Gary Ragghianti, and

seminating critical information to you as it comes in. We also maintain a central place

of course all of our regular section meetings.

for Local News & Information Regarding COVID-19 on our website. And we have

Shortly before sheltering in place was announced, MCBA’s board recognized that large, in-person events carried significant health risks and canceled or postponed the

made email listservs available for each of our sections and MCBA as a whole to help you stay in touch with your colleagues.

nearest events. As we now approach three

MCBA staff has quickly adapted to working

months with official shelter-in-place orders

remotely and the MBCA Board continues to

still in effect, we still do not know when siza-

meet via Zoom. We are here for our members

ble in-person gatherings will be allowed.

and community and appreciate your contin-

In order to continue to be of service to our members and our community, MCBA immediately pivoted from in-person meetings and events to hosting webinars. We held our first webinar on March 26th on how COVID-19 was affecting real property law. Since then, we have hosted more than 15 webinars and virtual events covering everything from Marin court updates to training on SBA Loans and the CARES Act, the impact of COVID-19 on several areas of the law, wellness with yoga, and numerous aspects of practice development, from maximizing your LinkedIn profile to practicing remotely, including taking a deposition or conducting a mediation.

ued support of MCBA and its mission. With how we live and work rapidly evolving in the face of great uncertainty, staying in touch presents new challenges. Local bar associations like MCBA are more important than ever for supporting your practice and the community. Our upcoming events calendar changes frequently as we add new webinars. Stay informed by subscribing to our email list, visiting MCBA’s website, or following us on one of our social media channels: Facebook, Instagram, LinkedIn, and Twitter. We look forward to seeing you in person again. Until then, stay safe and stay healthy. View this article at Marinbar.org

While sheltering in place orders are in effect, we have been offering our virtual meetings THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

UPCOMING EVENTS NEW MEMBERS John Fossett john.fossett@icloud.com 415 493 0566 Affiliate Member Retired

Barry Kahn barry.barrykahn@gmail.com 415 235 4097 Attorney Membership

Trisha Friedeberg Kato, Feder & Suzuki, LLP tfriedeberg@kfslaw.net 415 974 5715 Attorney Membership

Ellyn Moscowitz Legal Aid of Marin emoscowitz@legalaidmarin.org 415 492 0230 Non-Profit

Alexander Golovets Law Offices of Alexander Golovets agolovets@hotmail.com 510 932 1344 Affiliate Attorney

Carolyn Tsai Office of the Attorney General, CA carolyn.tsai@doj.ca.gov 415 510 3539 Government

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Established in 1938, MCBA has a long history in the Marin County legal community. For over 80 years, our members have benefited greatly from the professional connections and support that come along with membership. Invigorate your practice and expand your professional circle.

Membership is open to attorneys, non-attorneys, and legal professionals. Youâ&#x20AC;&#x2122;re invited to join today!

LEARN MORE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Thank you to our 2020 LEADERSHIP CIRCLE MEMBERS CHARLES D. DRESOW, ESQ. EPSTEIN + HOLTZAPPLE LLP RICHARD WATSON & GERSHON ROUDA FEDER TIETJEN & MCGUINN SARAH WRIGHT, THE WRIGHT LAW OFFICE SUSAN FEDER MEDIATION

The Leadership Circle is an elite group committed to and acknowledged for the vitality of our Bar Association. Leadership Circle contributions permit MCBA to better address and expand community programs such as Teens in the Law and Marin Countyâ&#x20AC;&#x2122;s Mock Trial Program, among others. Leadership Circle contributions also provide much needed capital to underwrite our MCLE initiatives and keep current with technology advances. Leadership Circle members receive expanded visibility throughout the year at Membership Meetings, monthly email newsletter, and at special events.

Contact MCBA to join the Annual Leadership Circle. sponsorship@marinbar.org 415-499-1314

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

MISSION STATEMENT To involve, encourage and support Bar Association members, to serve as a liaison to the Marin County courts, and to educate the community and enhance access to legal services.

www.marinbar.org THE MARIN LAWYER An Official Publication of the Marin County Bar Association