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Today, more of our lives are being conducted digitally by email, blogs, social media accounts, computer storage of digital pictures and online bank and investment accounts. However, many individuals may not realize that these digital assets are an essential consideration in estate planning. 

Currently, some states such as California, Florida and Michigan have enacted laws concerning the treatment of digital assets in an estate plan. At the same time, some technology companies have created procedures for accounts to be shut down after a user’s death. 

Google’s Inactive Account Manager feature, for example, allows a user to designate a trusted person as manager of a Google service once it becomes inactive. The manager can obtain access to the user’s emails, videos, and data in the account, download the data, and the account can be deleted.  In addition, Facebook has a feature that allows a user to select a “legacy contract” naming a family member or friend to manage the account after the user’s death and arrange to have the account permanently deleted.

Despite these features, many individuals tend not to think about death when they are engaging in social media, sharing photos, or tweeting their latest random observation on Twitter. Although this aspect of trusts and estate law is largely unsettled, there are steps that can be taken now to protect digital assets. 

In a typical estate plan, an executor or a trustee is named to manage and distribute a person’s assets after he or she dies, and digital assets should be included in that determination. Regardless of who is selected to act in this capacity, this individual must have access to the passwords for all online accounts. 

At the same time, this information should not be included in a will, since that is a public document that is filed in court. 

Instead, the will or trust should provide instructions on the management of digital assets. This requires creating an inventory of all online email and social media accounts, memberships, bank and investment accounts, and subscriptions. That list should also identify web addresses, user id’s, passwords, and account numbers. The executor or trustee should also be provided with this information and guidance on how to handle these accounts.

Because this area of law is evolving, it is crucial to work with an experienced estate planning attorney at Schneiders & Associates, LLP, who can help protect your digital assets and ensure your plan adheres to any applicable state laws.

By: Roy Schneider, Esq.

Advantages of Mediation

Divorce or legal separation can be one of the most difficult and traumatic life experiences. This is particularly true when divorce is an adversarial, court driven process. Mediation—a valuable alternative to litigation—is non adversarial. It is client driven, private, confidential, and less expensive than other forms of resolution. Instead of the court making major life decisions about the future of the parties and their children, mediation offers a neutral third-party, the mediator, to help guide the parties through the uncontested divorce to make their own decisions in reaching a fair and equitable resolution.

Role of a Mediator

A certified mediator is a neutral, unbiased professional who assists divorcing spouses reach a fair and equitable agreement based on their unique personal circumstances. To maximize the quality of time with the mediator and minimize the expense of the mediation process the mediator will require the parties’ cooperation and full disclosure. During the mediation process the mediator is not acting as an attorney and is not representing either or both spouses. Nor does the mediator impose any decision upon them. When the parties reach full agreement on the terms and conditions of all the relevant issues the mediator will prepare a marital settlement agreement.

Role of the Parties

Mediation is most effective when both parties to the divorce voluntarily decide to resolve issues within the marital estate to work out the terms and conditions under which they choose to be divorced. Because mediation is voluntary either spouse may choose to end the mediation process at any time. Full disclosure of the parties’ financial worth and assets is essential. While professionals—accountants, appraisers, independent legal counsel, or others—may be used as advisors, each spouse must accept full responsibility for the reasonable accuracy of the value of their assets. All marital property issues and other marital issues raised during the mediation process are confidential.  Hence, the parties must agree not to  disclose what is said against the other in any pending or subsequent litigation, except as required by law.

The Mediation Process

The uncontested divorce is a two-step process: 1.Participate in mediation; 2. Finalize in court. Under no-fault divorce observed in California the court only requires the spouse who files the petition to state the divorce is based on irreconcilable differences. Thus, only relevant issues are resolved. Grounds that blame the other spouse for the breakdown of the marriage are no longer at issue.

Generally, there are about 20 to 25 issues that require resolution. Because the courts are not directly involved the parties have the right to decide how they want to divide the marital estate assuming the distribution is fair, equitable and consistent with California community property law. If there are minor or dependent children both the physical and legal custody of the child should be determined based upon the best interests of the child. California statutes, however, govern the amount of child support each parent is required by law to pay.

After each issue has been agreed to and/or resolved, the mediator drafts a marital settlement agreement. The parties are encouraged to have separate independent counsel review the agreement although such review is not mandatory.

Litigation vs. Mediation

When spouses seeking  dissolution of their marriage refuse to agree or compromise on  material property issues, child custody or support, or even matters of lesser weight and importance they are faced with a battle in the Family Law Court. Unlike mediation where the process is self-determinative, the judge makes decisions for people who cannot make decisions for themselves. The court process is guided by law. Whereas the mediation process is guided by the mediator helping the parties make sound, fair decisions. Contested court hearings can cost each spouse many tens of thousands of dollars in attorneys’ fees, involve extensive discovery through interrogatories and requests for production of documents and be drawn out over many months and sometimes years. Those seeking dissolution of marriage who can make decisions for themselves, therefore, would be wise to decide to use the mediation process a with a certified mediator.

By: Georgianna Pennington Regnier, Certified Divorce Mediator

Contact Our Office

Attorney Georgianna Pennington Regnier lends her mediation skills to clients who are divorcing and want to avoid the trauma and expense of having divorce litigated in the courtroom. If you wish to meet with Georgianna, please contact our office at (805) 764-6370.

California litigation can take years to resolve, even with case management rules which can put the parties on a quick timeline towards trial. If your adversary dies before the case resolves, what do you do? That depends. If your dispute is particularly acrimonious, you might be tempted to celebrate. That’s fine, but don’t let it get in the way of protecting your right to recover or escape.

California Code of Civil Procedure section 377.31 empowers the decedent’s personal representative to substitute in for the decedent plaintiff or cross-complainant. How long after the death can the representative wait? There are cases where the dismissal for failure to prosecute occurred within 8 months or so of the death.

Section 377.31 states:

On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.

Section 377.31 states:

On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.

Section 377.31 states:

On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.

(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.

(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.

If you are the plaintiff, you can continue to pursue your case can be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest. (C.C.P. 377.40) You do need to make sure you’ve submitted a creditor’s claim in the decedent’s probate though. Section 377.41 states:

On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.

And you won’t be able to recover punitive damages once your defendant dies. Section 377.42 states:

In an action or proceeding against a decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, on a cause of action against the decedent, all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages.

Questions? Call Us Today!

If you have questions about litigation involving a deceased person, probate or estate planning, contact our office to schedule an appointment.

By: Kathleen J. Smith, Esq.

It’s time for another update on the current COVID-19 legislation and what impact the 2022 Supplemental Paid Sick Leave (“SPSL”) will have on California employers. California’s new SPSL officially took effect on February 19, 2022; however, it is retroactive to January 1, 2022. The SPSL provides for two separate 40-hour banks of leave: one for testing and isolating, and a second bank for employees or family members who test positive for COVID-19.

Below we have highlighted some of the more relevant sections that employers need to familiarize themselves with in order to avoid the potential for liability stemming from its handling of COVID-19 leaves of absence.

1. How long will the SPSL govern employers’ obligations to its employees and their family members who are affected by COVID-19?

The SPSL is in effect from January 1, 2022 through September 30, 2022.

• To which Employers does the SPSL apply?

All employers with 26 or more employees.

• What are the scenarios in which an employee can request leave under the SPSL?

The 2022 SPSL provides for two separate banks of leave, both of which may total 40 hours.

First, SPSL is available to employees who cannot work (including working remotely) due to the any of the three following reasons: (a) Caring for themselves. This includes the employee who is subject to an isolation period or quarantine related to COVID-19, has been advised by a medical professional to isolate or quarantine, or who is experiencing COVID-19 symptoms. (b) Caring for a family member. An employee who is caring for a family member who is subject to an isolation period or quarantine related to COVID-19, has been advised by a medical professional to isolate or quarantine, or who is experiencing COVID-19 symptoms. (c) Vaccine or booster. An employee or a family member of an employee who has an appointment for a COVID-19 vaccine or booster, or experiences vaccine-related side effects.

Second, an employee or family member of an employee who tests positive for COVID-19.

• When does an employer have to make the leave available to employees who request time off due to COVID-19?

Immediately upon written or oral request by the employee.

• What notice must an employer provide to its employees?

Employers are required to display the 2022 COVID-19 SPSL poster at the workplace where employees can easily locate and read it. For example, employers should post the SPSL poster in the breakroom or other common areas where similar health and safety information is located.

If an employee works off-site or works remotely, then the employer must send the required information via email (or other electronic means such as an employee portal or dashboard).

• Can the employee ask for retroactive pay SPSL if they took a leave prior to February 19, 2022?

Yes. If employees used sick leave prior to February 19, 2022, and did not receive compensation, they are entitled to pay, at their regular, straight-time wage. In order to qualify for the entire 80 hours of leave (40 hours in each of the two banks of leave), an employee must have worked an average of at least 40 hours per week in the two weeks prior to taking the leave.

If the employee receives retroactive pay for leave taken for a qualifying reason prior to February 19, 2022, then the employer can reduce the number of hours from that employee’s corresponding bank of hours.

• What information must be contained in the employee’s paystub if they take leave pursuant to the 2022 COVID-19 SPSL?

If an employee takes leave under the SPSL, those hours must be itemized on the employee’s wage statement (paystub) for the pay period during which the leave was taken. This itemized line must be separate and distinct from other forms of leave available to the employee, including the 24 hours of “regular sick leave” and any accrued vacation. 

• What type of COVID-19 test is required for an employee to qualify for leave under the SPSL?

Any COVID-19 test is acceptable, including an over-the-counter “at-home” (rapid test) or a test from a testing facility.

• Can the employer require documentation from a medical professional when an employee requests to take leave for a qualifying reason?

Yes, in three situations.

First, if the employee is requesting retroactive pay from the period of January 1, 2022 through February 19, 2022.

Second, when an employee uses more than three days (or 24 hours) of leave for a single vaccination or booster appointment. A note from a medical professional stating that the side effects lasted longer than three days will suffice.

Third, when the employee seeks leave from the 40-hour bank designated for employees (or their family member(s)) who tested positive for COVID-19. If the employee fails to provide a positive test within a reasonable time, the employer can deny pay for the leave taken by the employee.

1. Are there limits to how much SPSL an employee can use for receiving the vaccine or booster?

Yes, as described above, the maximum leave an employee can use for a vaccination or vaccine appointment is 24 hours. The employee does not have to use his or her 24 hours consecutively. For example, an employee could use four hours to receive a vaccine and then return to work if they are not suffering any died effects from the vaccination. The same employee could use the remaining 36 hours for subsequent vaccination or booster appointments, or if they suffer side effects from either of the latter appointments.

By: Christopher Correa, Esq.

The new year will be full of changes. Prepare for 2022 with our help! Join us for a FREE virtual employment law update seminar to learn about new employment law changes in 2022, including COVID-19 employment law updates. Partners Roy and Ted Schneider will discuss in detail, the changes the new year will bring and help you prepare for the road ahead! Tuesday, January 25, 2022 11:00 a.m. – 12:00 p.m. Via Zoom. Register today! Please note: MCLE credit is available for this seminar. Attorneys that wish to receive MCLE credit may contact Angela Mumme via email at amumme@rstlegal.com to register.

There is no law that state that companies must have employee handbooks or how often an employee handbook should be updated. However, crafting an employee handbook and frequently reviewing and updating employee handbooks are good ideas once a company has more than two employees. In addition, employers may consider implementing an arbitration agreement within their employee handbook and obtain a signed receipt and acknowledgment form from each employee, showing receipt and understanding of the handbook.

On August 26, 2020, in the case of Conyer v. Hula Media Services, LLC. Et al., the California Court of Appeal reversed a trial court ruling invalidating an arbitration agreement contained within an employee handbook. Plaintiff employee Michael Conyer singed and acknowledged receipt of his employer’s, Hula Media Services, employee handbook. The signed acknowledgement read as follows:

“This is to acknowledge that I have received a copy of the Employee Handbook. This Handbook sets forth the terms and conditions of my employment as well as the right, duties, responsibilities and obligations of my employment with the Company. I understand and agree that it is my responsibility to read and familiarize myself with all of the provisions of the Handbook. I further understand and agree that I am bound by the provisions of the handbook. I understand the Company has the right to amend, modify, rescind, delete, supplement or add to the provisions of this Handbook, as it deems appropriate from time to time in its sole and absolute discretion.”

When Conyer was terminated two months later, he sued Hula for claims under the Fair Employment and Housing Act for unreimbursed business expenses. Hula filed a motion to move the case from court to an arbitrator pursuant to the arbitration agreement in the employee handbook. The trial court denied Hula’s motion and kept the case in court. Hula appealed the decision. Conyer argued that Hula never mentioned the arbitration agreement. The Court of Appeal ruled that in California a party is bound by a contract even if he did not read the contract before signing it.

This case highlights the importance of frequently reviewing and updating employee handbooks and including employee receipt and acknowledgment forms. Employers can update any policy within their handbooks at any time without prior notice to employees. Revised versions of the handbook should be provided to all employees and a new signed receipt and acknowledgment obtained.  

The employment law attorneys at Schneiders & Associates, L.L.P. work with employers of all sizes to develop a tailored and specific employee handbook. Whether you are contemplating crafting an employee handbook for your business, or would like us to review or update your existing handbook, contact our office to request an Employee Handbook Questionnaire and to schedule an appointment to discuss your company’s policies and handbook needs.

By: Ted Schneider, Esq.

Often estate planning focuses on the “big picture” issues, such as who gets what, whether a living trust should be created to avoid probate and tax planning to minimize gift and estate taxes. However, there are many smaller issues, which are just as critical to the success of your overall estate plan. Below are some of the issues that are often overlooked by clients and sometimes their attorneys. 

Cash Flow 
Is there sufficient cash? Estates incur operating expenses throughout the administration phase. The estate in California may have to pay federal estate taxes, filing fees, living expenses for a surviving spouse or other dependents, cover regular expenses to maintain assets held in the estate, and various legal expenses associated with settling the estate. 

Taxes 
How will taxes be paid? Although the estate may be small enough to avoid federal estate taxes, there are other taxes which must be paid. If the estate is earning income, it must pay income taxes until the estate is fully settled. Income taxes are paid from the liquid assets held in the estate; however, estate taxes could be paid by either the estate or from each beneficiary’s inheritance if the underlying assets are liquid. 

Assets 
What, exactly, is held in the estate? The owner of the estate certainly knows this information, but estate administrators, successor trustees and executors may not have certain information readily available. A notebook or list documenting what major items are owned by the estate should be left for the estate administrator. It should also include locations and identifying information, including serial numbers and account numbers. 

Creditors 
Your estate can’t be settled until all creditors have been paid. As with your assets, be sure to leave your estate administrator a document listing all creditors and account numbers. Be sure to also include information regarding where your records are kept, in the event there are disputes regarding the amount the creditor claims is owed. 

Beneficiary Designations 
Some assets are not subject to the terms of a will or trust. Instead, they are transferred directly to a beneficiary according to the instruction made on a beneficiary designation form. Bank accounts, life insurance policies, annuities, retirement plans, IRAs and most motor vehicles departments allow you to designate a beneficiary to inherit the asset upon your death. By doing so, the asset is not included in the probate estate and simply passes to your designated beneficiary by operation of law. 

Fund Your Living Trust 
Your probate-avoidance living trust will not keep your estate out of the probate court unless you formally transfer your assets into the trust. Only assets which are legally owned by the trust are subject to its terms. Title to your real property, vehicles, investments and other financial accounts should be transferred into the name of your living trust. 

If you have any questions regarding estate planning, please do not hesitate to contact an Estate Planning Attorney at Schneiders & Associates, LLP for advice and counsel.

By: Roy Schneider, Esq.

COVID-19 has presented corporations with never-before-seen obstacles due in part to social distancing requirements, which have disabled directors and shareholders from meeting. Now is the time to update your corporate bylaws to allow your board to continue to operate during this global pandemic!

In January of 2014, the Corporations Committee of the California State Bar, spearheaded adding new provisions to the California Corporations Code to provide some flexibility in corporate governance during a state of emergency. The Corporations Code was amended in three important ways.

First, an article was added to acknowledge that bylaws may contain provisions to manage and conduct ordinary business during an “emergency,” such as COVID-19. The Code allows for bylaws to be amended to allow the board of directors to continue operations with special rules for calling board meetings and designating additional or substitute directors, if some directors are unavailable to participate.

Second, the California Corporation Code allows corporations to amend the lines of succession in the event of incapacity of a director, officer, employee or agent of the corporation, resulting from crises such as the COVID-19 emergency.

Third, corporations may give notice to directors of board meetings in any practical manner, when notice cannot be given as otherwise required by the bylaws or by the Code.  If necessary, corporations may also deem that one or more officers present is a director, in order to achieve a quorum.

The Code does not, however, eliminate the requirement of shareholder approval when it is otherwise required by law or the articles of incorporation. Under the current circumstances, because directors and shareholders may not able to meet, the Code and amendments to bylaws can address current pandemic or similar emergency situations in the future. These recommended amendments can allow the corporation to be operated properly.

If you have questions about updating your bylaws, please contact a business law attorney at Schneiders & Associates, L.L.P. for advice and legal guidance.

By: Roy Schneider, Esq.

An attorney may competently testify as an expert witness on a seemingly pure legal question if the testimony involves the intersection of corporate articles or by-laws, on the one hand, and the Corporations Code on the other hand. I recently testified in a bifurcated trial, where the judge decided the first half and then the second half was reserved for a jury decision. The bifurcated issue required the trial judge to form a complex understanding of a corporation’s by-laws as compared to the Corporations Code. Luckily, I brought my Corporations Code book with me to the witness stand.

Was the board of directors meeting properly noticed? The by-laws and the Code supported my opinion—yes, the meeting (which plaintiff skipped) was correctly noticed and could properly be conducted with the remaining directors present and voting. I concluded that the director who called the meeting was permitted to delegate responsibility for sending meeting notification by email to her assistant who was not a corporate director.

Electronic notice of a directors or shareholder meeting is proper under some by-laws. If not specified in the by-laws, the Corporations Code permits notice by electronic transmission by the corporation. [Corp. C. §§ 307(a)(2); 601(b)]

Was the meeting properly suspended and reconvened the next day? The by-laws can limit the body’s ability to suspend and reconvene. If the by-laws do not set any limit, the Corporations Code permits it.

Was the vote count correct? The absent director claimed he actually held a double vote, so his absence cancelled the remaining directors’ power to take action. My opinion— no, the director did not have a double vote and no, the absent director did not destroy the quorum at the meeting he skipped.

The court was appreciative of my two-hour seminar on corporations law, and I was even nice enough to loan my code book to opposing counsel during my testimony. After forty (40) years teaching and practicing corporations and business association law—counseling many LLCs on whether to incorporate or form as an LLC—I have seen just about every type of partnership, LLC and corporation dispute there is. The Code is like a bible when it comes to meeting compliance.

By: Roy Schneider, Esq.

Roy Schneider recently testified as an expert witness in a shareholder dispute trial on issues of shareholder and director voting, meeting notices, and the process for removal of a director. Roy has almost 40 years of experience as a corporate attorney and is available to serve as an expert witness in corporate disputes and to assist litigators preparing for trial. Roy regularly speaks before business and community groups about corporate compliance. Roy is also an Adjunct Professor of Business Law at California Lutheran University in Thousand Oaks.

Please contact our office at 805-764-6370 regarding Roy’s availability.