Posts Tagged ‘California Civil Code’

Contract Basics for Business: Five Requirements of A Contract

Businesses enter into contracts each and every day. Contracts are formed when customers make purchases, when suppliers deliver materials, or when contractors place orders. Contracts are a critical element when it comes to operating a business, and when contracts are not honored, disputes arise.

 

What Is Required to Form A Contract?

A contract requires five basic requirements, and if any one of the requirements is missing, no legal contract can be formed. The requirements for a contract include:

  1. Parties Capable of Entering a Contract. The parties to the contract must be legally capable of entering the contract in the first place. This means that each party to the contract must be fully aware of what they are doing by entering the contract and must understand what the contract means. As a general rule, minors are not legally capable of entering into a contract due to their inexperience, nor are individuals who are considered insane capable of understanding what it means to enter a contract.
  2. Offer and Acceptance. In order for a contract to exist, an offer to contract must be made by one party, and the offer must be accepted by another party. The offer must be clear and the acceptance must be definite and unqualified.
  3. The parties must exchange something. Each party makes a promise to the other or gives something of value to the other party. The consideration does not necessarily have to be fair or proportional: one party could agree to pay a single dollar in exchange for a motor vehicle, and so long as both parties agree to that arrangement, it can be binding. Consideration could also take the form of not doing something, or foregoing something a party normally would do or has a legal right to do, such as waiving certain rights. This is sometimes referred to as “bargained for exchange” or “bargained for detriment”.
  4. Legal Purpose. The contract must be for a legal purpose. To say this another way, the contract cannot violate the law. The parties cannot negotiate terms for the contract that break the law, or are illegal.
  5. Mutual Assent. Both parties to the contract must have a meeting of the minds, meaning both parties have a similar understanding of what the contract means, and both agree to be bound by it.

 

If any of the above requirements is lacking, then it is unlikely that a contract has legally been formed. Furthermore, specific types of contracts might have additional requirements in order to successfully form a valid contract. For instance, for many types of contracts encountered in business, the contract must be made in writing, identifying key terms of the contract, and signed by both parties. For instance, California Civil Code Section 1622 notes that all contracts can be made orally, unless the contract is specifically required to be made in writing by law.

Additionally, certain states may impose additional requirements for a contract to be legally binding and valid, and these laws should be taken into consideration if a specific state’s laws govern the contract.

These elements are fairly straightforward, yet when a contractual issues do arise it can be very difficult for the parties to understand and navigate the legalities in contract law.  Please contact our office if you are facing a contractual issue, dispute, or simply have additional questions relating to contracts.

Public Figures’ Privacy Rights In California

California is home to many celebrities and public figures, and the paparazzi is regularly and continually make attempts to take photos of these public individuals, or to score interviews with them. Public figures are individuals who have placed themselves in public view, such as actors and actresses, sports athletes, and politicians – many people involved in the entertainment industry are considered to be public figures. But city attorneys, authors, and average citizens who publicly advocate to influence resolution on public issues have all been considered to be public figures in California as well.

Sometimes the paparazzi crosses a line into something that feels like an invasion of the public figure’s privacy in order to capture a picture or to get a statement. But since these public figures are people of interest, and have placed themselves in the public sphere, where is the line between private and public?

 

Privacy Rights In California

Everyone in California, from celebrity to average Joe, is entitled to roughly the same right of privacy under the California Constitution, Article 1, Section 1. However, those individuals who are considered to be public figures tend to have a more difficult time obtaining recovery when their privacy is violated than private individuals do.

 

There are four causes of action for invasion of privacy tort in California that have arisen through case law, meaning through decisions made by the courts. These invasions of privacy include:

  1. Intrusion into private matters/private spaces. Public figures have little reprieve from invasions of privacy when they are out in public, but when they are in private spaces or engaged in private matters, they retain a right of privacy. Usually a public figure’s home serves as a private sanctuary where the individual can reasonably expect some privacy.
  2. Public disclosure of private facts. It is an invasion of privacy for someone to publicly disclose private facts that would be offensive and objectionable to a reasonable person concerning another where those facts are of no legitimate public concern. Facts that are not newsworthy or are not widely known may be considered private.
  3. Misappropriation of a person’s name or likeness. Sometimes also referred to as one’s right of publicity, it is an invasion of another’s privacy to misappropriate the name or likeness of another, in particular for commercial gains. This is particularly relevant to public figures whose name or image is used without permission to endorse products or services.
  4. Portraying a person in a false light. It is impermissible for an individual to portray another in a false light, i.e., portray another in a way that is highly offensive and implied to be true when it is actually false.

 

California law additionally provides some protections of privacy under Cal. Civil Code Section 1708.8, which are particularly relevant to the techniques used by the paparazzi to get photographs of public figures. These laws prohibit a person from entering on to the private property of another without permission for the purposes of taking a photograph or making a recording.

Understanding Privacy Protection of Medical Records In California

Personal medical information, medical records patient information are highly sensitive and confidential documents that should be safeguarded against unnecessary disclosure without the patient’s consent at all costs. The information contained in a patient’s medical records is private, and may not be disclosed without permission, save a few exceptional circumstances.

What Laws Protect Patient Medical Information?

There are a number of federal laws in place that are designed to protect the privacy of patient medical records, such as the:

California additionally offers protection for patient medical records through California Civil Code Sections 56-56.37, also referred to as the Confidentiality of Medical Information Act. Under California law, a patient’s personal medical information, i.e., any individually identifiable information that is kept in physical or electronic form, is protected from unauthorized disclosure by health care providers, health care insurance providers, pharmaceutical companies, and other entities with access to this sensitive information, unless a court order demands such disclosure.

Medical information can include information concerning a patient’s medical history, mental health history, their physical or mental condition, or any course of treatment they are on. Individually identifiable information can include information such as a patient’s name, contact information, Social Security number or any other information that can be combined with publicly available information in order to identify the patient.

Patient Consent To Disclosure

Many times, a patient is referred to a specialist who requires copies of the patient’s medical records. However, the patient’s current doctor is not allowed to provide the patient’s medical records to the specialist without first obtaining the consent of the patient. If a patient wants to consent to the disclosure of their personal medical information, the patient must give permission in writing.

The requirements for providing patient consent to the sharing, releasing or disclosure of confidential medical records are outlined in California Civil Code Sections 56.11, which requires that the patient’s consent must be:

In writing and signed by the patient, the patient’s legal representative, or the beneficiary or personal representative of the patient (if the patient is deceased).

  • Specific as to the permissible uses of the disclosed information, including detailing any restrictions or limitations on the disclosure of the patient’s medical records.
  • Clear as to who is authorized to release/disclose the medical information concerning the patient, and must be clear as to who is the authorized recipient of the released/disclosed medical information.
  • Clear as to the duration that the authorization is valid for.

Remedies For Unauthorized Disclosure

When a patient’s medical information is illegally disclosed or obtained without permission, the patient has a cause of action under California law. When the patient can show that the unauthorized disclosure amounted to some economic loss or a personal injury to the patient, then the patient has grounds for a suit. If you believe your information was disclosed without your authorization in writing and you have been damaged, contact our firm right away to speak with an experienced Los Angeles business attorney who can determine your rights and options.

We also advise businesses on how to substantially limit their liability and ensure their business policies conform to both state and federal statutes on a daily basis. Contact us if you have been accused of disclosing a patient or employee’s medical information without permission, or are unsure if your business is in full compliance with HIPPA and current employment laws.

New California Bill Prohibits Paparazzi From Flying Drones Over Private Property

For quite some time the paparazzi in California has relied upon the use of drones – which are unmanned, aerial devices that are operated remotely by a user or operator – to capture photographs of celebrities from afar, usually by piloting the unmanned drones over the private property owned by the celebrities to capture the shot. A new California bill aims to provide celebrities with a little more privacy by prohibiting the use of drones over private property, the LATimes reports.

Drone regulation has been a high-popularized issue in the area of technology law lately, especially in California.  Not only have the paparazzi made quite a bit of use out of drones for photography purposes, but others have taken up flying the contraptions to take photos of the wildfires that have been ravaging California.  The drones have even interfered with firefighting efforts in the recent past.  There have also been problems with drones being used to transport contraband into prison environments. However, many civilians enjoy drone manipulation as a hobby, and do not use their drones to break the law.

New Bill Puts Stop to Paparazzi Invasion of Celebrities’ Privacy

The bill, AB 856, deems flying a drone onto the private property of another for the purpose of taking photographs of video to be a physical invasion of privacy that will not be tolerated.  While previous versions of the bill would have made flying a drone within 350 feet over private property without consent a trespassing violation, the final version of the bill, which will be signed by Governor Jerry Brown in the upcoming weeks, is not as extreme.

Trespass is codified in California Penal Code Section 602 et seq. and already covers a variety of very specific trespassing violations.  Adding another trespass provision for the use of drones to take pictures of someone else, particularly a celebrity, would add more provisions to the already jumbled and dense area of trespass crimes.

The governor rejected many earlier versions of the drone bill as they would have created new crimes by adding new trespassing provisions to the law along with new punishments. In addition, making drone flying for photography purposes would unduly place restraints on a burgeoning drone industry. Rather, the new bill sets out to redefine the existing law to better incorporate invasions of privacy committed with a drone camera.

What Are The Existing Laws on Invasion of Privacy?

Invasion of privacy is based in tort law, and in California case law has established four tort actions based on invasion of privacy:

1. Intrusion into private places, conversations or other matters,
2. Public disclosures of private facts,
3. Presentation of a person to the public in a false light, and
4. Appropriation of another’s image or personality.

Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 214 (1998). The use of drones to take unauthorized photos of celebrities in their homes and on their personal property would be an intrusion into a private place and under California Civil Code Section 1708.8, a person is liable for physical invasion of privacy when they knowingly enter the land of another person without permission for the purpose of capturing any form of visual image of the person whose privacy is being invaded.

This bill is yet another example of how the law must catch up at times to address the legal implications a new technology presents, and it highlights the importance of obtaining proper legal advisement while navigating the complicated world of technology.

If you are working with a new technology or other product/service and do not yet fully understand the legalities and implications of your venture, it is especially important to retain an experienced business attorney for advisement on how to limit your liability and protect any intellectual property rights.