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The Pivotal Law Blog

The Paradoxical Issue of Treating Children of Parents with Domestic Violence Protection Orders

Posted Wednesday, September 20, 2017 by Brian Edwards

The litigation of Domestic Violence Protection Orders are an important role that the Court plays. These are the most protective (non-criminal) orders that a person can obtain. These orders assists victims of domestic violence in breaking the cycle, and allowing them separation and safety.

A somewhat paradoxical issue that has come up in the past has been how to treat the children of a couple that is the subject of these orders. There are a few child-specific rules. For instance, if an order includes a child-in-common of the parties, the order may not be issued for more than one year (RCW 26.50.060(2)).

One thing that has always been problematic with respect to children, however, has been the application of the very definition of domestic violence to them when seeking to have them protected under the order. RCW 26.50.010(3) sets out the definition of domestic violence, which reads, “(a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.”

While there are certainly instances where this definition is met for a child, there are also many times that the child is merely exposed to the violence, and has been previously omitted from the orders for that reason. In my experience, this has something of a chilling effect for victims who are afraid that their children will not be adequately protected in this process.

In June 2017, the Washington Supreme Court addressed this issue in Rodriguez v. Zavala. In a relatively rare unanimous opinion, the Court ruled that, “We conclude that exposure to domestic violence constitutes harm under the DVPA and qualifies as domestic violence under chapter 26.50 RCW.”

This case will have the effect of removing the ambiguity of whether the Court should or should not include a child on a protection order, and it will hopefully remove some of the fear that people seeking protection orders may experience as to whether or not their children will be protected if they make the decision to start this process.

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Federal EEOC Sues Employers over Pregnancy Discrimination

Posted Wednesday, September 13, 2017 by McKean J. Evans

Three recent lawsuits show the federal Equal Employment Opportunity Commission (“EEOC”) is taking a hard look at suspected pregnancy discrimination. Since late August, the EEOC has sued three employers claiming they discriminated against pregnant employees in violation of federal law.

Title VII of the federal Civil Rights Act prohibits workplace discrimination, including on the basis of gender. The Pregnancy Discrimination Act extends Title VII’s prohibition of sex discrimination to include discrimination based on pregnancy. It requires employers to treat women affected by pregnancy the same as persons of similar ability who are not affected by pregnancy. Two years ago, the U.S. Supreme Court interpreted this rule broadly to mean that an employer discriminates based on pregnancy when it refuses the employee an accommodation (such as light duty work) that the employer gives to non-pregnant employees. See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1350, 191 L. Ed. 2d 279 (2015). Washington State’s Law against Discrimination similarly prohibits employers from discriminating on the basis of pregnancy.

The EEOC’s recent lawsuits accuse three employers of unlawful pregnancy discrimination. The EEOC seeks back pay, compensatory damages, punitive damages and injunctive relief.

In the first case, the EEOC alleges a California dietary supplement company had a policy of routinely discharging employees if it learned the employee became pregnant. The EEOC learned of the practice after a worker complained, stating she was fired ten days after informing the company she was pregnant.

In the second case, the EEOC accuses a Wisconsin home health care firm of refusing to accommodate a pregnant worker with light-duty work. The lawsuit claims that the company routinely offered light-duty assignments to injured workers, but refused to extend the same accommodation to pregnant workers.

The final case accuses a Los Angeles restaurant and night club of firing an employee because of her pregnancy. The EEOC claims the restaurant, upon learning the employee was pregnant, cut the employee’s hours and refused to let her return to work after giving birth.

This recent action shows the EEOC considers pregnancy discrimination an enforcement priority.

“Pregnancy discrimination continues to be a persistent problem, even though it has been against federal law for nearly 40 years,” said one EEOC lawyer. “Employers should be cognizant of their obligations under the law to maintain a workplace free of discrimination against employees who are expectant mothers.”If you have questions regarding federal or Washington protections for pregnant employees, call Pivotal Law Group today for a free consultation.

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Equifax announces customer information including Social Security Numbers have been stolen in a data breach

Posted Thursday, September 7, 2017 by Christopher L. Thayer

View CNN’s article here:

http://money.cnn.com/2017/09/07/technology/business/equifax-data-breach/index.html

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Case law update: express easement vs. prescriptive easement

Posted Wednesday, September 6, 2017 by Christopher L. Thayer

In Schoenfelder, et al v. Larson (No. 48885-0-II), the Court of Appeals Division II recently addressed a situation involving several neighbors and a private roadway. A group of neighbors used a private road for access to their properties. Although the neighbors all purchased their lots at different times, the evidence presented demonstrated that the private road had been in use since at least the 1960s. The Larsons purchased their lot in 2015.

The road runs through the Larsons’ property before reaching the Neighbors’ properties. The road is “approximately 10 feet wide, with curvy turns and in excess of 700 feet long.” It begins at Kopachuck Drive and runs west, cutting through two parcels of the Larsons’ property. For years, many vehicles travelled the road, including vehicles driven by family members, guests, delivery and service persons, and emergency service vehicles.

The neighbors’ property are benefited by and the Larsons’ property burdened by an express easement agreement, which was recorded in 1996. The easement grants ingress and egress over and across the road from Kopachuck Drive to the benefitted properties. It grants “non-exclusive surface easement for ingress and egress on five (5) feet on each side of the center line across the existing black topped road” that crosses the parties’ respective properties. The road is not wide enough for two vehicles to pass and therefore the neighbors often use certain “turn out” areas to make way for oncoming traffic – these turnouts are all located on the Larsons’ property and are all beyond the scope of the existing express easement (10 feet wide).

After a 4-day bench trial, the trial court ruled the neighbors had a prescriptive easement over the areas burdened by the “turn outs” and also blocked the Larson’s from constructing a fence within 2.5 feet of the recorded express easement location. This was in recognition that fire trucks and other commercial vehicles could barely fit on the 10 foot wide express easement.

Prescriptive easement. The Court of Appeals needed to address whether the express easement had been modified by the parties’ conduct, creating an additional “prescriptive” easement.

To establish a prescriptive easement, the person claiming the easement must use another person’s land for a period of 10 years and show that (1) he or she used the land in an ‘open’ and ‘notorious’ manner, (2) the use was ‘continuous’ or ‘uninterrupted,’ (3) the use occurred over ‘a uniform route,’ (4) the use was ‘adverse’ to the landowner, and (5) the use occurred ‘with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.’

Gamboa v. Clark, 183 Wn.2d 38, 43, 348 P.3d 1214 (2015).

‘Adverse’ use generally means that the land was used without the landowner’s permission. “For a claimant to show that land use is ‘adverse and hostile to the rights of the owner’ in this context, the claimant must put forth evidence that he or she interfered with the owner’s use of the land in some manner.” Gamboa, 183 Wn.2d at 52. If a use is permissive, then no prescriptive easement will be found. What is known as “neighborly accommodation” often defeats a prescriptive easement claim – where the evidence suggests use of another’s property was permissive by implication as a gesture of good faith to a neighbor. Larsons argued permissive use in this case, but the Court of Appeals found the use of the turnouts was “adverse” based in part on the fact that prior owners of the Larson property had place rocks along the express easement (which blocked the turn outs) and the neighbors had removed these rocks (to allow continued access to the turn outs).

Whether or not a property owner has acquired property rights, including easement rights, by usage over time (prescriptive easements or adverse possession), is frequently a very fact-based inquiry. Schoenfelder is instructive in that it shows the length to which a Court will go to find “adverse” use, even in the face of claims the use was permissive and a neighborly accommodation. This is an “unpublished” case, meaning it has no precedential value.

If you have questions relating to an easement or property boundary line dispute, please contact managing partner Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.
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Washington Supreme Court Sends Strong Message Regarding Consumers and Meritless Debt Collection

Posted Wednesday, August 30, 2017 by McKean J. Evans

In its recent published opinion in Elliott Bay Adjustment Co., Inc. v. Caren Dacumos, the Washington Supreme Court confirmed the right of a debtor to collect attorneys’ fees in defending a meritless debt collection action in small claims court (i.e., in a lawsuit seeking less than ten thousand dollars). The court issued a strongly-worded opinion criticizing both the conduct of the debt collector in bringing the bogus lawsuit and the lower courts in denying the debtor’s request for attorney’s fees.

Elliott Bay sued Dacumos in small claims court over a $482.84 doctor’s bill that Dacumos had already paid. When Dacumos received the lawsuit, she immediately called Elliott Bay and told them she had already paid the bill in full. Elliott Bay told her she needed to make additional payments or Elliott Bay would obtain a judgment against her in court, garnish her wages, and pursue her for interest and attorney’s fees.

Dacumos hired a lawyer to defend the lawsuit. In the course of litigation, Elliott Bay insisted there were no factual disputes over whether Dacumos owed the doctor’s bill. Elliott Bay threatened to seek “significant” attorney’s fees from Dacumos.

After Dacumos provided the court bank statements showing she had paid the doctor’s bill, Elliott Bay acknowledged that the doctor’s office had mistakenly credited Dacumos’ payment to another patient’s account. Elliott Bay asked the court to grant a voluntary dismissal of its lawsuit against Dacumos “without prejudice.” “Without prejudice” means, in plain language, that it would be as if Elliott Bay had never sued Dacumos and Elliott Bay would be free to bring the same lawsuit again. Dacumos asked the court to instead dismiss the lawsuit with prejudice, meaning Elliott Bay could not sue Dacumos again on the debt. The court agreed with Dacumos and dismissed the case with prejudice, but refused to award Dacumos attorney’s fees.

The Washington Supreme Court reversed and ordered the lower court to grant Dacumos’ request for attorneys’ fees. The court pointed out that Washington law makes an award of attorney’s fees mandatory in cases seeking less than ten thousand dollars where one party is the “prevailing party.” Disagreeing with the lower courts, the Supreme Court concluded that Dacumos was the “prevailing party” because the lower court’s dismissal with prejudice established that Elliott Bay would never recover anything from Dacumos on the disputed doctor’s bill.

Beyond that fairly straightforward ruling, the Supreme Court sent a message to Washington’s lower courts that consumers who have to hire lawyers to defend bogus debt collection cases should recover their attorney’s fees from the debt collector. The Supreme Court criticized the lower court for “fail[ing] to appreciate that litigants have difficulty in obtaining counsel to assist in defending against collection activity when the alleged debt is small.” The court reiterated its statement in a prior case that attorney’s fee awards are important because defending debt collection cases over small amounts of money is “undesirable work to the great majority of attorneys” and many law firms would not allow a client like Dacumos through the office front door or advise her it was not economical to hire a lawyer to fight the case. The court also noted that “large corporate defendants can be uncooperative in discovery, leading to an increase in effort expended by the debtor’s attorney.”

If you are concerned about wrongful debt collection, contact Pivotal Law Group today for a free consultation.

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