California Supreme Court Holds Disclosure Is the Rule, Not the Exception, in Public Record Requests

October 2017
Number 59

Automated license plate reader (ALPR) scan data is not subject to the “records of investigation” exemption under the California Public Records Act (CPRA), the California Supreme Court has ruled. The Court, however, did not foreclose the ability to withhold such information if it would invade an individual’s privacy.

In American Civil Liberties Union of Southern California v. Superior Court of Los Angeles County (Aug. 31, 2017, No S227106) ___ Cal.5th ____, the Court considered whether a request for ALPR data was exempt from disclosure.

Background

The Los Angeles Police Department (LAPD) and the Los Angeles Sheriff’s Department (LASD) both utilize ALPR technology to locate vehicles linked to crimes under investigation. High-speed computer-controlled cameras that are mounted onto fixed structures or patrol cars automatically capture images of license plates for each vehicle that passes through the optical range. Each number captured is then checked against a list of license plate numbers that are associated with crimes or criminal investigations-the “hot” list. If a match occurs, the system alerts either officers or a central dispatch unit.

The American Civil Liberties Union (ACLU) sought to investigate the legal and policy implications of the government’s use of ALPR data. The ACLU submitted a CPRA request to the LAPD and LASD seeking all ALPR data collected over a one-week period, consisting of at minimum the license plate number, date, time and location information of each license plate recorded. The ACLU did not seek disclosure of any license plate numbers that matched the hot list. Both the LAPD and LASD declined to produce the requested scan data, citing the CPRA’s exemption for law enforcement records of investigation.

Both the trial court and the Court of Appeal concluded that the requested data was exempt from disclosure under the records of investigation exemption. But in a unanimous decision, the California Supreme Court reversed the appellate court’s decision, noting that its obligation to interpret the CPRA in a manner that favors disclosure required that all exemptions be construed narrowly. The Court reasoned that in order to qualify as an “investigation,” an inquiry by law enforcement must be targeted at suspected violations of the law and not collected as part of “bulk data collection.” Here, the ALPR scans were not each “conducted as part of a targeted inquiry” into a specific crime, and therefore could not be considered records of investigation.

The Court recognized the public interest in not disclosing the data. As the Court explained, such disclosure threatened individuals’ privacy, since “data showing where a person was at a certain time could reveal where that person lives, works, or frequently visits.” However, the Court also recognized that disclosure of the ALPR data could be used to determine if the information was being properly obtained and used. Accordingly, the Court returned the case to the trial court with instructions to consider whether the balance of public interests would be altered if the ALPR data could be redacted or anonymized by “replacing the actual license plate numbers with fictional numbers.” The Court cautioned that in analyzing the catchall exemption of the CPRA, a court “cannot allow ‘vague safety concerns’ to foreclose the public’s right of access.”

Takeaways

This opinion serves as an important reminder that courts are likely to err on the side of disclosure under the CPRA and will likely continue to restrict the general use of disclosure exemptions.

For more information on this case or the California Public Records Act in general, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
Written by:

Jenell Van Bindsbergen

Partner & Co-Chair

Alyse Pacheco

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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School District Need Not Accommodate Coach’s Request to Publicly Pray at Football Games

October 2017
Number 58

A Washington school district was not required to allow a high school football coach to pray on the 50-yard line at the end of each game, the Ninth Circuit Court of Appeals ruled inKennedy v. Bremerton School District (9th Cir. 2017, No. 16-35801) ___F.3d___ <http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf&gt;. The court found that the District did not violate the coach’s First Amendment rights by placing him on administrative leave for refusing to cease his demonstrative prayer after football games.

Background

Joseph Kennedy coached football in the Bremerton School District from 2008 to 2015. During his first coaching season, Kennedy began praying at the end of each football game. After a few games, players started to join Kennedy. Eventually, Kennedy began giving short motivational speeches with religious content following each game.

In September 2015, the District learned of Kennedy’s prayers and speeches and asked him to limit his speeches to non-religious topics to avoid offending any players. The superintendent told Kennedy he could still engage in private, non-demonstrative prayer.

Following the District’s request, Kennedy began giving non-religious post-game speeches and praying only after everyone had left the stadium. After several weeks of this practice, Kennedy asked the District to allow him to resume praying on the field after each game. The District reiterated that Kennedy could pray in private before or after the games, but that he could not engage in demonstrative religious activity observable by students and the public attending the games. Kennedy refused to comply with the District’s instruction and engaged in demonstrative prayer during the next two games. The District placed Kennedy on paid administrative leave. The football players did not continue to pray on their own after the football games.

Several months later, Kennedy sued the District, asking the trial court to require the District to reinstate him as a football coach and allow him to pray on the 50-yard line immediately after each football game. The Ninth Circuit upheld the trial court’s ruling that the District did not did not have to reinstate Kennedy or permit him to engage in demonstrative public prayer immediately after the games.

Takeaways

Public employees retain their First Amendment free speech rights when speaking as private citizens. But “when public employees make statements pursuant to their official duties,” the United States Supreme Court held in its landmark 2006 ruling in Garcetti v. Ceballos, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In Kennedy, the Ninth Circuit found that Kennedy spoke as a public employee-and not as a private citizen-because he prayed “immediately after games while in view of parents and students.” The court found that this activity fell within the scope of Kennedy’s official duties because in his role as a sports coach, Kennedy served as a mentor and role model for student athletes.

The Ninth Circuit’s ruling highlights that a public school may limit demonstrative religious speech of an employee who serves as a student mentor and role model. The court suggested that this same rule applies to teachers, and this analysis also likely applies to counselors and other employees who serve as role models to students. Nevertheless, the court indicated that a public school employee has the right to pray or otherwise practice religion while in private, even if on school grounds.

Kennedy does not address whether a district may limit religious speech of other employees (janitors or cafeteria workers, for example) who have more limited and discrete interactions with students. Additionally, while one
judge wrote separately to explain his view that the District could limit Kennedy’s public prayers to avoid the appearance of endorsing a particular religion, Kennedy does not address whether a district violates the
Establishment Clause by permitting or failing to limit an employee’s demonstrative religious speech.

If you have any questions about the Kennedy decision or employees’ religious speech rights in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner & Co-Chair

Alyssa R. Bivins

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Eliminates Registration Requirement for Model Aircraft

September 2017
Number 55

The Federal Aviation Administration (FAA) may no longer require the registration of model aircraft, following the D.C. Circuit’s decision in Huerta v. Taylor.

Model aircraft, commonly known as drones, are unmanned aircraft that weigh 55 pounds or less and are used exclusively for recreational purposes. Small unmanned aircraft used for any commercial purposes, or unmanned aircraft heavier than 55 pounds, are not impacted.

The Huerta case challenged a rule promulgated by the FAA in 2015 known as the Registration Rule that required model aircraft to be registered with the FAA. Challenged on the basis of the 2012 FAA Modernization and Reform Act, which specifically prohibits the FAA from promulgating any rule or regulation regarding a model aircraft, the court barred the application of the Registration Rule to model aircraft.

The court did not consider the application of the FAA Modernization and Reform Act to an FAA circular that restricted model aircraft flight in the Washington, D.C. area, because the challenge fell outside of the 60-day window to challenge the rule and the plaintiff did not have reasonable grounds for the delay. FAA Advisory Circular 91-57A continues to prohibit the operation of model aircraft in Prohibited Areas, Special Flight Rule Areas or the Washington National Capital Region Flight Restricted Zone without specific authorization.

Previously, the FAA took the position that state and local government regulation of unmanned aircraft must be consistent with the federal statutory and regulatory framework. Federal registration was the exclusive means for registering unmanned aircraft, and no state or local government could impose an additional registration requirement without first obtaining FAA approval. The court’s ruling did not address whether state and local governments may now be permitted to require registration of model aircraft pursuant to their police power.

Regardless, state and local governments may still rely on their traditional police power in areas such as land use, zoning, privacy, trespass and law enforcement operations to regulate uses of unmanned aircraft, including model aircraft. FAA examples of permissible state and local regulations include prohibitions against use for voyeurism, against use for hunting or fishing, and against attaching firearms or similar weapons.

For more information on the Huerta decision or on drone regulation in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

William P. Cureley III

Partner & Co-Chair

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Denies Untimely Childhood Sexual Abuse Damages Claim

September 2017
Number 53

A divided California Supreme Court threw out a woman’s claim against a public agency arising from resurfaced memories of alleged sexual abuse in the early 1990s because it was not submitted to the public agency by the six-month deadline for submitting such claims under the Government Claims Act. (Rubenstein v. Doe No. 1 et al. (Aug. 28, 2017, No. S234269)__ Cal.5th __.)

In a 4-3 decision, the Court found that the “delayed discovery rule” applicable to childhood sexual abuse claims for alleged conduct occurring before January 1, 2009 does not affect the six-month deadline to present a personal injury claim to a public entity. The Court’s holding inRubenstein underscores the “measured actions” the California Legislature has taken to protect public entities from potential liability for stale claims.

The Government Claims Act and Code of Civil Procedure section 340.1

The Act generally requires that claims against a public entity for money or damages must be presented in writing to the public entity prior to filing a lawsuit in court, and must also be filed within six months of when the claim arises. A potentially competing provision is the delayed discovery rule in Code of Civil Procedure section 340.1, which provides that a lawsuit for childhood sexual abuse must be filed within the later of eight years of the date the plaintiff turns 26 or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury was caused by the sexual abuse.

Background

The Rubenstein lawsuit originated when a 34-year-old woman submitted a claim to a school district alleging that from 1993 to 1994, she was sexually molested by her high school track coach. She alleged that latent memories of the sexual abuse resurfaced in early 2012. Within six months of this discovery, she filed a claim with the district under the Act. The school district denied the claim as untimely, the woman filed suit, and the trial court dismissed the case on the school district’s demurrer. The Court of Appeal reversed, agreeing with the plaintiff that her claim was timely under the limitations period set forth in section 340.1.

The California Supreme Court disagreed. In reversing the Court of Appeal, the Court discussed at length its 2007 decision inShirk v. Vista Unified School District, which expressly rejected the argument that section 340.1 postpones a victim’s duty under the Act to present a claim for childhood sexual abuse against a public entity within six months of the alleged abuse. The Court reasoned that section 340.1 only applies to statutes of limitations, and since the claim presentation deadline under the Act is not a statute of limitations, section 340.1 did not affect that deadline. Thus, although the cause of action may have been timely for purposes of the statute of limitations, the presentation of the claim against the public entity remained untimely, having fully accrued when the alleged abuse occurred.

The Court recognized that in direct response to Shirk, the Legislature enacted Government Code section 905, subd. (m), which added an exception to the claims requirement for childhood sexual abuse claims, but only those arising out of conduct occurring on or after January 1, 2009. The legislative history behind section 905 makes clear the Legislature overruled Shirk only prospectively due to fiscal considerations, leaving Shirk’s holding intact regarding pre-2009 claims. In so doing, the Rubenstein Court recognized “the Legislature put governmental entities on notice that for conduct allegedly occurring on or after January 1, 2009, they would have to protect themselves as best they could against possible stale claims. But the Legislature also intended to protect those entities from such claims for conduct occurring before that date.”

The Court also found support for its conclusion in the public policy considerations underlying the claim presentation requirement of the Act, which include providing the opportunity for public entities to promptly remedy the issue; minimizing the risk of similar harm to others; permitting investigation while evidence is still available, memories are fresh, and witnesses can be located; allowing for settlement of meritorious disputes without costly litigation; and providing time for appropriate budgetary planning.

Takeaways

This case makes it clear that public entities continue to be protected from potential liability for stale claims for alleged sexual abuse occurring before January 1, 2009, but must find ways to protect themselves from claims related to later-occurring conduct.

For more information on the Rubenstein decision or on application of the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Erin Frazor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Discovery of Public Records after Requester Filed Lawsuit Leads to Attorney Fee Award for Plaintiff

September 2017
Number 51

A California appeals court has found a city liable for attorney’s fees after determining that a related lawsuit prompted the city to produce records during the litigation that the plaintiff had first sought through a California Public Records Act (CPRA) request.

In Sukumar v. City of San Diego, the Court of Appeal held that the City of San Diego, although acting in good faith and having ultimately disclosed all records responsive to a CPRA request, had to pay a plaintiff’s attorney fees after being sued under the CPRA. A key factor in the court’s decision was the city’s repeated assurances to both the plaintiff and the trial judge that all responsive records were disclosed when in fact this was not the case.

The CPRA and the Catalyst Theory

A public agency may be sued under the CPRA if a requesting party believes the agency’s response to their request for records was inadequate. Plaintiffs in such cases are eligible for an award of attorney’s fees if they win their case. They may also be eligible for fees in situations where they do not win but can prove there was a substantial causal relationship between the lawsuit and the public agency’s production of additional records. This method of securing attorney fees is known as the “catalyst” theory. This rule applies to all local agencies that must produce records
under the CPRA.

Background

Plaintiff Ponani Sukumar made a CPRA request seeking 54 separate categories of records dating back to 1990 that related to neighbors’ complaints regarding a list of code violations Sukumar allegedly committed and the city’s investigation of those complaints. About a month after Sukumar made his request, the city provided access to some of the records and sent a letter stating that this was the city’s “last response.” Three weeks later, Sukumar filed a lawsuit alleging that the city was withholding responsive documents. The city continued to produce records after the suit was filed.

During the legal proceedings, the city’s attorney claimed that all of the responsive documents had been produced. However, a key document was subsequently produced on the day that depositions of city employees were scheduled. During a deposition, a city employee indicated that additional records may not have been produced. Following the depositions, the city produced an additional 146 pages of emails and five photographs.

After the city produced these additional records, the trial court held that Sukumar’s lawsuit was moot because the city had produced all of the responsive documents. The court also decided that the lawsuit was not the motivating factor for the city’s production of the additional records, and as a result, Sukumar was not eligible for recovery of attorney’s fees. Sukumar appealed the attorney fee decision.

The appeals court reversed the trial court’s decision, determining that substantial evidence existed to show that the lawsuit induced the city to locate and produce additional records, entitling the plaintiff to recover attorney’s fees. The Court of Appeal was not persuaded by the city’s argument that the lawsuit did not cause it to produce requested records because the city had already agreed to turn them over, holding that “but for” the court-ordered depositions, which were a direct product of the lawsuit, the city would not have continued to look for, or produce, the responsive records. The Court of Appeal acknowledged that there was no evidence of bad faith on the city’s behalf, but held that bad faith is not the applicable test.

Takeaways

The decision in this case highlights the importance of carrying out broad and comprehensive searches for records responsive to CPRA requests from the outset. Such searches may reduce the likelihood of overlooking responsive records. This will be especially challenging given the volume of electronic data under a public agency’s control. Also, when a public agency knows that additional records may be discovered at a later date, it may be in the agency’s best interest to immediately notify the requesting party when the records will be made available. By following these practices, public agencies can hopefully avoid the issues presented in this case and the accompanying risk of attorney’s fees.

If you have any questions about the Sukumar decision or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

Steve Ngo

Senior Counsel

Jerrad M. Mills

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Environmental Review Not Necessarily Required Prior to Approval of a Real Property Purchase Agreement

September 2017
Number 49

The Fourth District Court of Appeal has ruled that the execution of a purchase and sale agreement for real property that is contingent upon compliance with the California Environmental Quality Act (CEQA) does not trigger a public agency’s duty to prepare an environmental impact report (EIR) under CEQA.

The California Environmental Quality Act

CEQA is a complicated body of law which requires public entities to consider environmental effects of their projects before approving them. This generally involves a three-step process where the agency must first determine whether a given activity is a “project” governed by CEQA. If so, the second step is to determine whether the project is exempt under either a statutory or categorical exemption, and if no exemption applies, the public agency proceeds to a third step of considering whether the project may have a significant effect on the environment. If all impacts are insignificant or can be mitigated to a level of less than significant, the agency may prepare a negative declaration. If the possibility of an unmitigated impact remains, then a more extensive EIR is required.

Background

In Bridges v. Mt. San Jacinto Community College District, the governing board of a community college district approved an agreement to purchase real property, contingent on CEQA compliance. A pair of citizens sued, alleging the district was required to prepare an EIR before executing the agreement. Both the trial court and the Court of Appeal disagreed, confirming that a public agency is not required to complete CEQA review prior to entering into an agreement to acquire real property, as long as the acquisition is contingent on completion of CEQA review. The appellate court held that CEQA requires the preparation of an EIR before the purchase of real property is final, but not before merely executing a purchase and sale agreement contingent upon CEQA compliance.

This exception to CEQA review, however, is narrowly construed. An agency cannot hide behind a contingent purchase and sale agreement to postpone preparation of an EIR. The applicable legal test is whether an agency has committed itself to a definite course of action. No definite course of action can be approved before the EIR is prepared, and a real property purchase and sale agreement contingent upon CEQA review alone is not a definite course of action. Once a definite course of action is taken by a public agency, however, CEQA requirements are triggered. For example, California’s CEQA guidelines authorize a public agency to enter into a land acquisition agreement if it has conditioned future use of the land on CEQA compliance, so long as it has not already approved the use of the site or specific facilities, which would require CEQA review. As long as an agency does not engage in any such action or agreement that would commit it to a definite course of action regarding a specific site, CEQA review is not required before executing a purchase and sale agreement for real property contingent upon CEQA review.

Tips to Avoid a Finding of a Definite Course of Action

  • Agencies should not commit any funds to a project, including loans to contractors or developers, until the preparation of an EIR is complete.
  • Agencies should avoid engaging developers in contract, or drafting detailed development plans, before an EIR is completed.
  • A governing body can pass a resolution selecting a specific site for construction and directing administration to make a purchase offer contingent on completion of the EIR process.
  • Governing bodies should not make public comments that may be construed as commitment to a project for which there is no EIR. Comments regarding hopes that a project will come to fruition or a project’s possibilities are acceptable.

If you have any questions about the Bridges decision or CEQA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kelly M. Rem

Partner

Jennifer Grant

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Appellate Courts Reject Recreational Trail Immunity for Adjacent Hazards

August 2017
Number 47

Two decisions in the last three months have increased the potential for a public entity to be held liable for an injury suffered on one of its recreational trails. Appellate courts decidingGarcia v. American Golf Corporation (May 3, 2017, No. B267613) ___ Cal.App.5th ___ and Toeppe v. City of San Diego (July 27, 2017, No. D069662) ___ Cal.App.5th ___ held that a public entity cannot assert recreational trail immunity when an adjacent hazardous condition of the public entity’s property is unrelated to, or independent of, the trail. Previous decisions had broadly applied statutory recreational trail immunity to hazards on property adjacent to public trails.

The California Supreme Court denied review of the Garcia decision on August 9. As of this writing, no request for Supreme Court review has been filed in Toeppe.

Prior Law

Public entities generally are immune from liability for injuries caused by their recreational trails, pursuant to Government Code section 831.4. The statute specifically provides that a public agency is not liable for an injury caused by a “condition of” an “unpaved road” or “trail” used for general recreational purposes.

In the past, this immunity has been consistently interpreted to broadly protect public agencies from liability due to injuries from both design elements and locations of trails. InAmberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, the plaintiff was bumped off a path and started to slip down a hill. The court held that recreational trail immunity extended to both the design of a trail (the lack of handrails) and the location (the placement next to a steep slope). One year later, in Prokopv. City of Los Angeles (2007) 150 Cal.App.4th 1332, the appellate court held that the “condition of” a bikeway included the design of a bicycle gate into which plaintiff had crashed, and that even though the injury occurred just off the bikeway itself, that the gateway to the bike path was “an integral part of the bike path.”

Earlier this year, in Leyva v. Crocket & Company, Inc. (2017) 7 Cal.App.5th 1105, an appellate court considered a case where the plaintiff was struck by a golf ball while on a publicly owned trail. The plaintiff argued that the lack of safety barriers on the adjacent golf course caused the injury, and that this condition was not a faulty design or condition of the trail. The appellate court disagreed and concluded that the immunity applied since the trail’s location next to the golf course was an “integral feature” of the trail, and the erection of a safety barrier would be equivalent to the installation of a handrail in Amberger.

The Garcia Decision

Factually similar to Leyva, the plaintiff in Garcia was a child in a stroller who was hit in the head by a golf ball while on a pedestrian walkway between a roadway and a golf course, which were all owned by a city. However, in Garcia the court concluded thatAmberger “did not hold that there must be immunity for every injury occurring on a trail when an adjacent public property was a contributing factor. … It identified the issue as whether the trail and an adjacent public property meet a relatedness test.” The court found that the trail and golf course did not pass this relatedness test, and it distinguished Leyva despite its strong factual similarities.

Consequently, the court issued a narrow holding: A public golf course cannot assert a recreational trail immunity defense when the trail abuts a public street; the course is a commercially-operated, revenue-generating enterprise; the course has a dangerous condition; and the dangerous condition caused harm to a user of the trail.

The Toeppe Decision

Issued by the same appellate district that issued Leyva, theToeppe decision used an approach similar to Garcia but stated a broader holding. The plaintiff was walking on a trail in a public park when a eucalyptus branch fell and injured her. The court distinguishedAmberger by saying that the tree was “independent of the trail” and that the dangerous conditions in the two cases were fundamentally different. The court also distinguished Leyva despite the fact that the hazardous condition in Leyva was off the trail and independent of it. The court concluded that the recreational trail immunity did not apply, holding that “this is not a case about trails. It is about trees.”

Impact on Public Agencies

Leyva still has some precedential value, but by tacitly disapproving that case, the Garcia and Toeppe cases seem to establish a new paradigm that limits public agency immunity for hazardous conditions
adjacent to recreational trails. Accordingly, public agencies may need to reassess the design, insurance, maintenance and use of their trails to minimize the risk of liability.

If you have any questions about these decisions or trail immunity in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

William P. Curley III

Partner

Arne B. Sandberg

Senior Counsel

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.