That is the politically correct way of wishing you a very Merry Christmas, Happy Kwanzaa, Happy New Year, and any other Joyful celebration you partake at this time of year!
Here's to a Safe, Healthy, and Peaceful Holiday, no matter how you choose to celebrate at this time of year and for whatever reason!
December 24, 2010
December 20, 2010
To Discover - Ah, The "Heart" of Litigation
So, you've gotten upset enough to file that lawsuit, pay the $395.00 in filing charges, and the other side has actually responded with an Answer. Now what? Well, you may have enough evidence to prove your case, but the other side will likely be asking you for that evidence in the form of "discovery" requests. The other side may also have denied all allegations in your complaint, and as a result, you may wish to educate yourself as to why the other side did not simply "cave" upon receiving your complaint - in other words, you may wish to conduct discovery as well to learn about the other side's case. How do you go about this?
In California, there are the following types of discovery: form interrogatories (official statutorily created questions that allow you to ask certain "common" questions with the check of a box); special interrogatories (you get to create your own questions that are in addition to the form interrogatories) - you get up to 35, but may be entitled to more (which is common); request for production of documents; and request for admissions (* - technically, not discovery, but has a similar effect). Now, there are also other methods, including depositions - oral and written; independent medical examinations (known as IME's), and property inspections.
In each of the foregoing types of discovery, there are pros and cons associated with each. Form Interrogatories are basic, simple, and universal. However, there is legal authority that limits the ability to obtain full responses, even to form interrogatories. The key to discovery is to have a plan of action early in your case. Discovery procedures can be both time consuming and costly, very costly. In addition, depending on the responses provided, the other side may object to the responses given, and demand that either more complete responses be provided or else a formal motion will be brought in court to compel such responses. Sometimes, a court will order sanctions against the responding party as well.
Discovery is a critical tool utilized in the litigation process to both acquire information in formulating your case (whether plaintiff or defendant) as well as to create work and expense to the parties in an effort to push one side or the other into possible early resolution.
I've only grazed this issue, and hope to elaborate on the specifics of discovery down the road.
Stay Dry!
In California, there are the following types of discovery: form interrogatories (official statutorily created questions that allow you to ask certain "common" questions with the check of a box); special interrogatories (you get to create your own questions that are in addition to the form interrogatories) - you get up to 35, but may be entitled to more (which is common); request for production of documents; and request for admissions (* - technically, not discovery, but has a similar effect). Now, there are also other methods, including depositions - oral and written; independent medical examinations (known as IME's), and property inspections.
In each of the foregoing types of discovery, there are pros and cons associated with each. Form Interrogatories are basic, simple, and universal. However, there is legal authority that limits the ability to obtain full responses, even to form interrogatories. The key to discovery is to have a plan of action early in your case. Discovery procedures can be both time consuming and costly, very costly. In addition, depending on the responses provided, the other side may object to the responses given, and demand that either more complete responses be provided or else a formal motion will be brought in court to compel such responses. Sometimes, a court will order sanctions against the responding party as well.
Discovery is a critical tool utilized in the litigation process to both acquire information in formulating your case (whether plaintiff or defendant) as well as to create work and expense to the parties in an effort to push one side or the other into possible early resolution.
I've only grazed this issue, and hope to elaborate on the specifics of discovery down the road.
Stay Dry!
December 10, 2010
Constitutional Issue of the Day: Discrimination
I just read a great article by the American Medical Association on the legal ability to curb smoking in the workplace ... and outside the workplace. Read it here: http://bit.ly/b0avVL
I also read an article earlier on Yahoo (sorry, I don't have the link) regarding a new business in Wisconsin whose owner put a sign on the window that said, "No Negro's Allowed" [spelling original.] The owner noted that, since it's his private business, he should be able to refuse service to anyone and, since he has had unfortunate incidents with colored persons in the past, his sign is simply providing notice before such persons enter the premises of his feelings. Who cares about Equal Protection these days? Oh, by the way, the business is a "strip/gentleman's club".
These issues fall right in line with the current debate on California's Proposition 8 - Marriage between same gender spouses. Actually, of the three issues, I think the first (anti-smoking) and the third (gay marriage) issues are more analogous than the second (race/color). The rationale for prohibiting smoking employees, whether they smoke during work or not, is that smoking is a clear health danger. The Surgeon General has repeatedly warned us about the ill-sided effects of smoking, both to ourselves as well as to others. The primary reason to an employer, then, is that his health-care premiums will increase with each smoking employee. Thus, from a cost standpoint, it is obviously better to prohibit smokers. Another reason, obviously, is that non-smokers tend to get sick less often than their smoking counter-parts. As the courts have held (see the AMA article above), while there is discrimination, such discrimination does not involve a paramount liberty and as long as there exists a rationale reason for the discrimination, the courts at present will not prohibit such conduct.
Same gender marriage can be coined in a similar rationale. While I personally do not have any problem with same gender marriages, and frankly believe that such marriage should be lawful, the issue that comes up most often is benefits paid out by pensions and the acquisition of insurance where spousal requirements are strictly enforced. How does one prove that a spousal relationship exists, especially with regard to same gender couples?
The issues are complex, and will continue to be debated for years to come, I am afraid. That said, the issue over whether a prejudiced person can prohibit some patrons from entering his private club, if open to the public, is a bit more straight forward. The Equal Protection Clause, as well as the 14th Amendment are pretty straight forward, I think ... if you want to invite the public into your establishment, you cannot discriminate on the basis of race, gender, etc. "Gay" bars are required to serve "straight" customers; gentleman's clubs must allow entry to women, men, and all races, religions, etc.
Have a Safe Weekend!
I also read an article earlier on Yahoo (sorry, I don't have the link) regarding a new business in Wisconsin whose owner put a sign on the window that said, "No Negro's Allowed" [spelling original.] The owner noted that, since it's his private business, he should be able to refuse service to anyone and, since he has had unfortunate incidents with colored persons in the past, his sign is simply providing notice before such persons enter the premises of his feelings. Who cares about Equal Protection these days? Oh, by the way, the business is a "strip/gentleman's club".
These issues fall right in line with the current debate on California's Proposition 8 - Marriage between same gender spouses. Actually, of the three issues, I think the first (anti-smoking) and the third (gay marriage) issues are more analogous than the second (race/color). The rationale for prohibiting smoking employees, whether they smoke during work or not, is that smoking is a clear health danger. The Surgeon General has repeatedly warned us about the ill-sided effects of smoking, both to ourselves as well as to others. The primary reason to an employer, then, is that his health-care premiums will increase with each smoking employee. Thus, from a cost standpoint, it is obviously better to prohibit smokers. Another reason, obviously, is that non-smokers tend to get sick less often than their smoking counter-parts. As the courts have held (see the AMA article above), while there is discrimination, such discrimination does not involve a paramount liberty and as long as there exists a rationale reason for the discrimination, the courts at present will not prohibit such conduct.
Same gender marriage can be coined in a similar rationale. While I personally do not have any problem with same gender marriages, and frankly believe that such marriage should be lawful, the issue that comes up most often is benefits paid out by pensions and the acquisition of insurance where spousal requirements are strictly enforced. How does one prove that a spousal relationship exists, especially with regard to same gender couples?
The issues are complex, and will continue to be debated for years to come, I am afraid. That said, the issue over whether a prejudiced person can prohibit some patrons from entering his private club, if open to the public, is a bit more straight forward. The Equal Protection Clause, as well as the 14th Amendment are pretty straight forward, I think ... if you want to invite the public into your establishment, you cannot discriminate on the basis of race, gender, etc. "Gay" bars are required to serve "straight" customers; gentleman's clubs must allow entry to women, men, and all races, religions, etc.
Have a Safe Weekend!
December 8, 2010
Unlicensed Contractors - Can BK save them?
In a previous entry back several weeks ago, I explained how unlicensed contractors in California are not allowed to keep any money paid to them for construction projects whether or not the job was completed in a reasonable workmanlike manner. California Bus. & Prof. Code Section 7031(b). This is based on strong public policy that prohibits unlicensed contractors from working in California on projects over $500.00 to protect owners of property from shoddy work.
To obtain his or her money, the owner must generally sue the unlicensed contractor in California state court. The causes of action that are often alleged include: Violation of Bus & Prof Code Section 7031(b), breach of contract, and fraud. However, the first two are much easier to assess damages: any money paid must be returned. Fraud, however, requires that the misrepresentation (assuming there was one) caused the owner damages. If the work was done in a reasonable workmanlike manner, then the owner received something of value in consideration of the payment, notwithstanding the statute violation. So, the court will not award more than what was paid (ie, the court will order that the owner's money be returned).
The issue that has arisen is whether an unlicensed contractor defendant, sued and found liable for the violation of Section 7031(b), may avoid payment to the owner by filing for bankruptcy protection. Generally, a judgment is simply an unsecured debt for which bankruptcy (except in certain exceptions) discharges. In the recent case of In Re Sabban (9th Cir. 2010) 600 F.3d 1219, the 9th Circuit Court of Appeals affirmed the lower bankruptcy court's ruling that, unless the debtor is found liable for actionable fraud - owner/plaintiff is awarded damages in excess of the restitution under Section 7031 - the debt (restitution under Section 7031(b)) will be discharged by the bankruptcy.
This case is important because it basically flies in the face of California's policy to protect the owner, and allows an "out" for the unlicensed contractor who violates a state law, but is absolved of such conduct. Potentially, Section 7031, et seq. also provides for public monetary penalties. It is unclear if the decision is meant to negate the defendant debtor's liability for the penalties as well. Anticipate more on this to come.
To obtain his or her money, the owner must generally sue the unlicensed contractor in California state court. The causes of action that are often alleged include: Violation of Bus & Prof Code Section 7031(b), breach of contract, and fraud. However, the first two are much easier to assess damages: any money paid must be returned. Fraud, however, requires that the misrepresentation (assuming there was one) caused the owner damages. If the work was done in a reasonable workmanlike manner, then the owner received something of value in consideration of the payment, notwithstanding the statute violation. So, the court will not award more than what was paid (ie, the court will order that the owner's money be returned).
The issue that has arisen is whether an unlicensed contractor defendant, sued and found liable for the violation of Section 7031(b), may avoid payment to the owner by filing for bankruptcy protection. Generally, a judgment is simply an unsecured debt for which bankruptcy (except in certain exceptions) discharges. In the recent case of In Re Sabban (9th Cir. 2010) 600 F.3d 1219, the 9th Circuit Court of Appeals affirmed the lower bankruptcy court's ruling that, unless the debtor is found liable for actionable fraud - owner/plaintiff is awarded damages in excess of the restitution under Section 7031 - the debt (restitution under Section 7031(b)) will be discharged by the bankruptcy.
This case is important because it basically flies in the face of California's policy to protect the owner, and allows an "out" for the unlicensed contractor who violates a state law, but is absolved of such conduct. Potentially, Section 7031, et seq. also provides for public monetary penalties. It is unclear if the decision is meant to negate the defendant debtor's liability for the penalties as well. Anticipate more on this to come.
December 6, 2010
The Cost of Legal Services - I have to pay what?!?
What would you rather shell out $1,000 for? A new computer, a new diamond ring, a new racing bicycle, 5 passports to Disneyland? What about a couple of crowns and fillings to alleviate your toothache? What about laser eye surgery so you can see better? What about drafting a simple partnership agreement so, should something ever occur to your new business partnership, you'll have a cost-effective exit strategy?
My bet is that the latter is low on the list. Why? Because legal services are often expensive, though invaluable down the road ... and, importantly, the thought most of us consider is, "Can't I just do this myself and save a few bucks?" Of course you can. I often meet with potential clients who wonder out loud during our consultation meeting what the benefit is of having an attorney draft business documents, incorporate a business, or even answer a complaint in court. I believe my fees are competitive, yet to a layperson, they are certainly costly in comparison to what else that money may buy. What is the fee charged and thereafter paid used for?
For starters, my practice of law is a business, just like anyone else's - my fees pay for the operation of that business - rent, supplies, employees, vendor services, and importantly insurance; it also pays my personal expenses in raising my family.
Specifically, however, the fee paid is charged for knowledge and experience in handling the matter covered as much as for the time in having to deal with the particular client's concerns. The client also gains that time spent by the attorney so that, instead of dealing directly with the issue, the client can concentrate on other pressing matters, such as the operation of the business, hiring employees, buying merchandise, and otherwise, dealing with necessary day-to-day issues affecting the client.
I've said it before - you can cook your own food, prepare your own taxes, mow your own lawn, repair your own car, handle your own travel plans, sew your own clothes, and handle your legal affairs. And, for much of life, we do ... whenever we purchase something, we usually read the "small print" ourselves and make the purchase without our attorney present; without calling our tax adviser every time we purchase or sell something; plant flowers without the licensed landscaper; put oil in our car without the mechanic standing over our shoulder. On the other hand, when various matters become too time consuming, remember that the fees charged go a long way to advance YOUR cause, whatever that may be.
Until next time!
My bet is that the latter is low on the list. Why? Because legal services are often expensive, though invaluable down the road ... and, importantly, the thought most of us consider is, "Can't I just do this myself and save a few bucks?" Of course you can. I often meet with potential clients who wonder out loud during our consultation meeting what the benefit is of having an attorney draft business documents, incorporate a business, or even answer a complaint in court. I believe my fees are competitive, yet to a layperson, they are certainly costly in comparison to what else that money may buy. What is the fee charged and thereafter paid used for?
For starters, my practice of law is a business, just like anyone else's - my fees pay for the operation of that business - rent, supplies, employees, vendor services, and importantly insurance; it also pays my personal expenses in raising my family.
Specifically, however, the fee paid is charged for knowledge and experience in handling the matter covered as much as for the time in having to deal with the particular client's concerns. The client also gains that time spent by the attorney so that, instead of dealing directly with the issue, the client can concentrate on other pressing matters, such as the operation of the business, hiring employees, buying merchandise, and otherwise, dealing with necessary day-to-day issues affecting the client.
I've said it before - you can cook your own food, prepare your own taxes, mow your own lawn, repair your own car, handle your own travel plans, sew your own clothes, and handle your legal affairs. And, for much of life, we do ... whenever we purchase something, we usually read the "small print" ourselves and make the purchase without our attorney present; without calling our tax adviser every time we purchase or sell something; plant flowers without the licensed landscaper; put oil in our car without the mechanic standing over our shoulder. On the other hand, when various matters become too time consuming, remember that the fees charged go a long way to advance YOUR cause, whatever that may be.
Until next time!
November 24, 2010
Time Barred - Statutes of Limitations
You've been wronged ... but you don't have the money to hire an attorney and file a lawsuit right now. How long can you wait before you must file the lawsuit? Can you wait indefinitely? No. In all states, as well as the federal court system, a complaint must be filed within a certain number of years from the date the harm occurred or was discovered, or else it is time barred. In California, these "statutes of limitations" are generally found in the Code of Civil Procedure ("CCP"), though there are other statutes in different codes, depending on the type of wrong. My focus today is on civil wrongs and, as always, my discussion is focused on California law.
If you were injured in a car accident, punched in the nose, fell off a ladder, or were otherwise hurt, you have 2 years from the date you were injured to sue the party you believe wronged you (CCP Section 335.1). If your tenant fails to pay you for rent, and moves out, you must file your lawsuit for breach of lease either within 2 years (if an oral lease - CCP 339.5) or 4 years (if a written lease - CCP 337.2). If you just bought a business, and the agreement is in writing, but you later determine that the business was overvalued due to misrepresentations by the seller, you may sue for multiple reasons. Your breach of contract action must be filed within 4 years of the date of the breach, likely the close of escrow (CCP 337); your fraudulent representation action must be filed within 3 years from the date you discovered that the representations were false (CCP 338). If you purchased a new house, and discover water damage 7 years after you move in, you may still have a right to file a complaint, but you must do so within 10 years of when the home was substantially completed (CCP 337.15); further, once you become aware of a defective condition in property, you have 4 years from the discovery date by which to file your lawsuit (CCP 337.1), subject to the 10 year statute of repose discussed above.
Thus, while a lawsuit usually need not be filed on the spot immediately after you have been wronged, it is important to seek legal counsel or otherwise investigate the time constraints that may hinder your ability to proceed at a later date, and one should do so within a reasonable time after becoming aware that a lawsuit may be necessary to recover damages for being wronged.
Importantly, once the limitations period has passed, your complaint will be time barred, and you will not be allowed to proceed. This is the case, even if your delay was caused by neglect, negligence, or mistake. If you are considering a civil lawsuit, I highly recommend that you seek out legal counseling immediately to determine whether your rights may be impeded by a statute of limitations.
HAPPY THANKSGIVING!!
If you were injured in a car accident, punched in the nose, fell off a ladder, or were otherwise hurt, you have 2 years from the date you were injured to sue the party you believe wronged you (CCP Section 335.1). If your tenant fails to pay you for rent, and moves out, you must file your lawsuit for breach of lease either within 2 years (if an oral lease - CCP 339.5) or 4 years (if a written lease - CCP 337.2). If you just bought a business, and the agreement is in writing, but you later determine that the business was overvalued due to misrepresentations by the seller, you may sue for multiple reasons. Your breach of contract action must be filed within 4 years of the date of the breach, likely the close of escrow (CCP 337); your fraudulent representation action must be filed within 3 years from the date you discovered that the representations were false (CCP 338). If you purchased a new house, and discover water damage 7 years after you move in, you may still have a right to file a complaint, but you must do so within 10 years of when the home was substantially completed (CCP 337.15); further, once you become aware of a defective condition in property, you have 4 years from the discovery date by which to file your lawsuit (CCP 337.1), subject to the 10 year statute of repose discussed above.
Thus, while a lawsuit usually need not be filed on the spot immediately after you have been wronged, it is important to seek legal counsel or otherwise investigate the time constraints that may hinder your ability to proceed at a later date, and one should do so within a reasonable time after becoming aware that a lawsuit may be necessary to recover damages for being wronged.
Importantly, once the limitations period has passed, your complaint will be time barred, and you will not be allowed to proceed. This is the case, even if your delay was caused by neglect, negligence, or mistake. If you are considering a civil lawsuit, I highly recommend that you seek out legal counseling immediately to determine whether your rights may be impeded by a statute of limitations.
HAPPY THANKSGIVING!!
November 15, 2010
Oops - I 'forgot' to Answer the Complaint - Now What?
So, you were served with a lawsuit and you read that you had 30 days to file a response with the court and serve that response on the plaintiff, but you forgot - now what? Well, in California, the result can have varied results, depending on various factors. Question: How long has your response been overdue? If your response was due filed and served yesterday (or even up to 2-3 weeks ago), you likely still have sufficient time to contact plaintiff or its counsel to request an extension to respond. You may hear a demand that you have waived time to attack the complaint, and must now file an Answer, but generally, you should still be given time to file a response, including an attack (Demurrer or Motion to Strike).
The rationale for allowing a "late" response is that, in California at least, courts "bend over backward" to allow all parties time to appear and have their side heard; the alternative, being defaulted by the plaintiff, takes time to finalize and, upon a request by the defendant, is almost always "set aside" - removed as though it did not occur. In fact, many attorneys often "stipulate" (agree) to set aside any default taken because the costs and time to oppose such request is so often met with a court granting the request to set aside, that it is pretty much, a waste of time.
With that said, of course, there are limitations to how long the court will allow a delay. California courts also expect cases to be processed diligently and timely. Where excessive delay occurs, even if by accident, courts have the discretion to deny a defendant's request to set aside a default. The ability to set aside a default is highly impacted in cases where the Request for Entry of Default has, in fact, turned into a Default Judgment. At that point, a defendant has a much more difficult task in overturning a Entry of Judgment.
I hope this is informative to you - Have a Great Day!
The rationale for allowing a "late" response is that, in California at least, courts "bend over backward" to allow all parties time to appear and have their side heard; the alternative, being defaulted by the plaintiff, takes time to finalize and, upon a request by the defendant, is almost always "set aside" - removed as though it did not occur. In fact, many attorneys often "stipulate" (agree) to set aside any default taken because the costs and time to oppose such request is so often met with a court granting the request to set aside, that it is pretty much, a waste of time.
With that said, of course, there are limitations to how long the court will allow a delay. California courts also expect cases to be processed diligently and timely. Where excessive delay occurs, even if by accident, courts have the discretion to deny a defendant's request to set aside a default. The ability to set aside a default is highly impacted in cases where the Request for Entry of Default has, in fact, turned into a Default Judgment. At that point, a defendant has a much more difficult task in overturning a Entry of Judgment.
I hope this is informative to you - Have a Great Day!
November 12, 2010
Why Is My Case "Limited"?
Civil lawsuits filed in California are generally classified as one of three different types of jurisdiction: Small Claims, Limited, or Unlimited. The classification is usually based on the amount in controversy. There are certain exceptions, but that is the quick and easy answer for now. The determination is based upon codified law found in the California Code of Civil Procedure. You can search California Code for any statute you wish at the following website: www.leginfo.ca.gov.
Small Claims Jurisdiction: The legislature enacted Code of Civil Procedure Sections 116.110, et seq. (that means, including the sections immediately following the described section) to expedite minor disputes without having to expend lots of money and time in the superior court. Any matter where a person is demanding not more than $7,500.00 can be heard in small claims. Small Claims proceedings are quicker because, in effect, there is a form complaint, form response (if defendant wishes), and a trial in front of a judge sometime within 60 days from the date of the filing of the complaint. Only a defendant may appeal (thus, if the plaintiff loses, he is stuck with the defense judgment); and, the defendant only gets one chance to appeal, and that decision on appeal becomes final. Again, plaintiff may not appeal the new ruling if adverse to plaintiff. A big disadvantage to small claims is that the parties are not allowed to be represented by legal counsel at the original trial. On appeal, either side may choose to retain counsel, who may be present and "try" the case on behalf of the party. Once the trial has concluded, the judge usually provides a written opinion within 5 court days with the court's ruling.
Limited Jurisdiction: Limited Jurisdiction is for cases where the amount in controversy does not exceed $25,000.00 (exclusive of costs, legal fees, interest). Limited cases used to be heard in the "Municipal Court" but California has consolidated its court system, so any judge technically has the ability to be assigned to either limited or unlimited jurisdiction cases. Unlike small claims, limited jurisdiction parties may have counsel represent them throughout the litigation process. Generally, the "limited" case has the feel of a full-fledged lawsuit, may have juries, more discovery, and take longer. Unlike "unlimited" jurisdiction, however, the process is still expedited, with specific rules for discovery to minimize the costs associated with such process. For more on Limited statutory authority, see Code of Civil Procedure, Sections 85, et seq.
Unlimited Jurisdiction: Unlimited Jurisdiction is for cases where the amount in controversy is greater than $25,000.00 or otherwise deals with complex issues. Code of Civil Procedure Sections 410, et seq deal specifically with unlimited jurisdiction matters and how to proceed therein.
Hope this provides insight - Have a nice weekend!
Small Claims Jurisdiction: The legislature enacted Code of Civil Procedure Sections 116.110, et seq. (that means, including the sections immediately following the described section) to expedite minor disputes without having to expend lots of money and time in the superior court. Any matter where a person is demanding not more than $7,500.00 can be heard in small claims. Small Claims proceedings are quicker because, in effect, there is a form complaint, form response (if defendant wishes), and a trial in front of a judge sometime within 60 days from the date of the filing of the complaint. Only a defendant may appeal (thus, if the plaintiff loses, he is stuck with the defense judgment); and, the defendant only gets one chance to appeal, and that decision on appeal becomes final. Again, plaintiff may not appeal the new ruling if adverse to plaintiff. A big disadvantage to small claims is that the parties are not allowed to be represented by legal counsel at the original trial. On appeal, either side may choose to retain counsel, who may be present and "try" the case on behalf of the party. Once the trial has concluded, the judge usually provides a written opinion within 5 court days with the court's ruling.
Limited Jurisdiction: Limited Jurisdiction is for cases where the amount in controversy does not exceed $25,000.00 (exclusive of costs, legal fees, interest). Limited cases used to be heard in the "Municipal Court" but California has consolidated its court system, so any judge technically has the ability to be assigned to either limited or unlimited jurisdiction cases. Unlike small claims, limited jurisdiction parties may have counsel represent them throughout the litigation process. Generally, the "limited" case has the feel of a full-fledged lawsuit, may have juries, more discovery, and take longer. Unlike "unlimited" jurisdiction, however, the process is still expedited, with specific rules for discovery to minimize the costs associated with such process. For more on Limited statutory authority, see Code of Civil Procedure, Sections 85, et seq.
Unlimited Jurisdiction: Unlimited Jurisdiction is for cases where the amount in controversy is greater than $25,000.00 or otherwise deals with complex issues. Code of Civil Procedure Sections 410, et seq deal specifically with unlimited jurisdiction matters and how to proceed therein.
Hope this provides insight - Have a nice weekend!
November 5, 2010
Civil Lawsuits - Often anything but Civil
A "civil" lawsuit is one that is based on someone's non-criminal liability. In other words, the plaintiff is after either monetary relief (damages), specific performance (requiring a party to act pursuant to agreed-upon terms), or equitable relief (such as prohibiting someone from continuing to do something) and is alleging that the defendant has done something wrong to plaintiff or plaintiff's legal interests.
Non-civil lawsuits would include criminal prosecution, family law matters, probate, and a few other types not relevant here.
The term, "civil" also connotes one's being polite, or 'not rude'. Unfortunately, if you've ever participated in a lawsuit, you know that oftentimes, such definition could not be further from the truth. To some extent, it is difficult to understand why a party would be "nice" to the other party, especially if one is alleging that such party wronged him. "Yeah, you punched me in the gut, but let's be nice." Just doesn't sound right, does it?
On the other hand, the court system intends for the parties to act civilly towards each other - no shouting, yelling, arguing out of turn, in the court-room - lest a party wants to be held in contempt of court. (punished by the judge).
For this reason, I highly recommend that parties in any lawsuit, at a minimum, consult with legal counsel. While the system is designed to allow self-representation (individuals representing themselves are known as "in pro per"), even if not in small claims (*Exception - corporate entities must be represented by legal counsel), having emotionally charged parties represent themselves is asking for disaster, in my opinion.
While lawyers have been known to overreach the bounds of "zealous" representation for their clients - by being obnoxiously rude to the opposing counsel or party - usually such conduct is limited. Lawyers understand the procedures involved; understand tactics utilized to better a position, not just for mere harassment; and, in particular, are not drawn into unfamiliar territory, such as the in pro per party.
If you must consider the civil lawsuit, either as plaintiff or defendant, I urge you to consult with legal counsel and, do recommend retaining an experienced litigator to assist you in wading through the litigation mine field. It will keep emotions below a simmering point and allow you to concentrate on other issues.
What are your thoughts? Have A Great Weekend!
Non-civil lawsuits would include criminal prosecution, family law matters, probate, and a few other types not relevant here.
The term, "civil" also connotes one's being polite, or 'not rude'. Unfortunately, if you've ever participated in a lawsuit, you know that oftentimes, such definition could not be further from the truth. To some extent, it is difficult to understand why a party would be "nice" to the other party, especially if one is alleging that such party wronged him. "Yeah, you punched me in the gut, but let's be nice." Just doesn't sound right, does it?
On the other hand, the court system intends for the parties to act civilly towards each other - no shouting, yelling, arguing out of turn, in the court-room - lest a party wants to be held in contempt of court. (punished by the judge).
For this reason, I highly recommend that parties in any lawsuit, at a minimum, consult with legal counsel. While the system is designed to allow self-representation (individuals representing themselves are known as "in pro per"), even if not in small claims (*Exception - corporate entities must be represented by legal counsel), having emotionally charged parties represent themselves is asking for disaster, in my opinion.
While lawyers have been known to overreach the bounds of "zealous" representation for their clients - by being obnoxiously rude to the opposing counsel or party - usually such conduct is limited. Lawyers understand the procedures involved; understand tactics utilized to better a position, not just for mere harassment; and, in particular, are not drawn into unfamiliar territory, such as the in pro per party.
If you must consider the civil lawsuit, either as plaintiff or defendant, I urge you to consult with legal counsel and, do recommend retaining an experienced litigator to assist you in wading through the litigation mine field. It will keep emotions below a simmering point and allow you to concentrate on other issues.
What are your thoughts? Have A Great Weekend!
November 1, 2010
You've Filed Your Civil Complaint ... Now What?
Hopefully, the great majority of you have never had to file a civil complaint against anyone (you as the 'plaintiff'). Even more pertinent, hopefully, you've never been on the receiving end of a lawsuit (you as the 'defendant'). However, at some point, you may believe that litigation is the only recourse remaining. In that case, you will need to file what is known in California as a "complaint" - I'll write more about the specifics of filing the complaint down the road (which form(s) to use, how to allege facts, what to ask for, etc.).
For now, let's assume you've filed (or your attorney has), ... now what? Now, you must serve the defendant(s) with what is known as a "summons" and your complaint. The summons is a form that provides notice to the defendant of its immediate rights and obligations. The summons in California indicates that the defendant "has been sued by" you, and that defendant has 30 days from the date of personal service to file a formal response with the court and serve it on you/plaintiff or your counsel. Service of the response may be (and usually is) by mail, even if the defendant counter-sues you (known in California as a Cross-complaint). Service of the summons/complaint usually takes anywhere between 1-15 days from the date of the filing of the lawsuit, but it can take much longer, depending on the access to defendant, its whereabouts, and various other factors. (I'll have more on this in upcoming entries as well).
However, the defendant need not file an answer. Defendant has the right to object for numerous statutory reasons - such as, wrong person, improper jurisdiction, or your complaint fails to allege sufficient facts to state a cause of action (claim) against this particular defendant. Such attacks are filed with the court and served personally or by mail to you or your counsel. If such attack is filed (usually called either a "demurrer" or a "motion to strike", and these two types of attacks are often filed concurrently), the court schedules a hearing date to occur some time within the next 25-60 days. You then have a certain number of business days to file/serve an opposition. The defendant then gets the opportunity to file a reply brief, and eventually, the hearing occurs to determine the merits of defendant's argument.
If defendant succeeds, the court almost always gives plaintiff/you another crack at the apple. This is known as "leave to amend" the complaint to allege sufficient facts or otherwise correct whatever is deemed wrong. Usually, you get 10-15 days to do so. If you do, in fact, file an "amended" complaint, defendant gets another 30+ days to respond (you may serve the amended complaint by mail in California).
If the defendant is not successful, the court usually requires that defendant file/serve an "Answer" to the complaint within 5-10 days of the hearing.
As you have likely surmised, the date between when you initially file your lawsuit/complaint and the date the defendant actually appears and answers your complaint can often be long and arduous. Indeed, the reason that cases often take 1 year or more to go through the litigation process is due to the procedural rights and obligations of the parties.
Clients often believe that the litigation process has specific time tables which must be adhered to. Thus, clients assume that once served, their opponents have an obligation to answer and then the court will set a trial date some time in the near future. As briefly noted above, however, this rationale is simply inaccurate. From initial filing date to the initial trial setting conference, expect to wait at least 75-90 days, and often, longer. And, from filing to trial often does, indeed, take 1 year, though 3-5 years is not unheard of, especially in complex cases with multiple parties (each defendant has the opportunity to attack the plaintiff's pleadings).
More to come!
Hope you find this useful!
For now, let's assume you've filed (or your attorney has), ... now what? Now, you must serve the defendant(s) with what is known as a "summons" and your complaint. The summons is a form that provides notice to the defendant of its immediate rights and obligations. The summons in California indicates that the defendant "has been sued by" you, and that defendant has 30 days from the date of personal service to file a formal response with the court and serve it on you/plaintiff or your counsel. Service of the response may be (and usually is) by mail, even if the defendant counter-sues you (known in California as a Cross-complaint). Service of the summons/complaint usually takes anywhere between 1-15 days from the date of the filing of the lawsuit, but it can take much longer, depending on the access to defendant, its whereabouts, and various other factors. (I'll have more on this in upcoming entries as well).
However, the defendant need not file an answer. Defendant has the right to object for numerous statutory reasons - such as, wrong person, improper jurisdiction, or your complaint fails to allege sufficient facts to state a cause of action (claim) against this particular defendant. Such attacks are filed with the court and served personally or by mail to you or your counsel. If such attack is filed (usually called either a "demurrer" or a "motion to strike", and these two types of attacks are often filed concurrently), the court schedules a hearing date to occur some time within the next 25-60 days. You then have a certain number of business days to file/serve an opposition. The defendant then gets the opportunity to file a reply brief, and eventually, the hearing occurs to determine the merits of defendant's argument.
If defendant succeeds, the court almost always gives plaintiff/you another crack at the apple. This is known as "leave to amend" the complaint to allege sufficient facts or otherwise correct whatever is deemed wrong. Usually, you get 10-15 days to do so. If you do, in fact, file an "amended" complaint, defendant gets another 30+ days to respond (you may serve the amended complaint by mail in California).
If the defendant is not successful, the court usually requires that defendant file/serve an "Answer" to the complaint within 5-10 days of the hearing.
As you have likely surmised, the date between when you initially file your lawsuit/complaint and the date the defendant actually appears and answers your complaint can often be long and arduous. Indeed, the reason that cases often take 1 year or more to go through the litigation process is due to the procedural rights and obligations of the parties.
Clients often believe that the litigation process has specific time tables which must be adhered to. Thus, clients assume that once served, their opponents have an obligation to answer and then the court will set a trial date some time in the near future. As briefly noted above, however, this rationale is simply inaccurate. From initial filing date to the initial trial setting conference, expect to wait at least 75-90 days, and often, longer. And, from filing to trial often does, indeed, take 1 year, though 3-5 years is not unheard of, especially in complex cases with multiple parties (each defendant has the opportunity to attack the plaintiff's pleadings).
More to come!
Hope you find this useful!
October 21, 2010
To Enforce or Not To Enforce, Is There A Question
Why are laws created? To protect us, generally, from potentially bad things - traffic lights, theft, truancy, forgery, battery/assault, ... etc. Taxation - how does this "protect us?" Well, it provides our government with money to spend to ensure that we are protected - ie, police, firefighters, fixing roads, creating adequate education/schools, etc.
Of course, sometimes a long-standing law can become out-dated or obsolete due to technological advances and/or political or moral correctness. In addition, some laws have more "bite" than others and, as such, those that we deem minor infraction type laws, are often not enforced to the same degree as major infractions. Why is that? Have you ever driven through a stop sign on a rural road? Have you ever walked across a street where there is no cross-walk? Have you ever built something without obtaining a permit? Have you ever hired a contractor knowing that he (or she) was not licensed? Have you ever gone to a movie in the same theater for which you only paid for an earlier different movie? Have you ever moved seats to a better section when you paid for the cheaper nose-bleed seats? Have you ever driven above a specified speed limit?
Sometimes, the enforcement is lax, as well. The simplest example is the last one above, "speeding." Speeding is the slang term for driving faster than the posted speed limit. If I am on the freeway, and the posted limit is 65 mph, and I look down, and I'm going 66 mph, I'm "speeding." That said, it is also less than likely that a highway patrol officer will pull me over; why? Because the infraction is negligible. And yet, could I get a ticket? Should I? At what speed does the infraction become serious? And, why post a speed limit when it is not the actual limit?
Example 2: Is a building permit necessary to construct a home? No. The purpose of a building permit is to ensure that certain code requirements have been met; but, whether they are or not does not depend on the filing of the permit. That is simply the way that the city building inspector can confirm that the home is built, generally, to code. It's also a great revenue producer. The latter is unfortunately, the usual benchmark for a particular city, however. If a permit is not generated prior to construction, the city will fine the owner, and require that the fee plus a penalty charge be paid, along with the late application for a permit - which, as long as the $$ is there, more often than not, is approved. Moreover, oftentimes, the issue does not even arise.
Recently, in various sport leagues, certain laws have been tested by player infractions. These laws, which have been on the books for awhile, are enforceable through very subjective penalties. Should laws be enforced to the letter of the particular law? If this were done in each game, the game would never end. Each time an infraction is called, the clock stops. Think of basketball, where infractions up and down the court cause longer delays, and a choppy game. This same feeling would occur in life, and, frankly, there are not enough policemen, judges, and other public personnel to enforce all laws to the tee.
What are your thoughts? What do you think?
Have A Great Day!
Of course, sometimes a long-standing law can become out-dated or obsolete due to technological advances and/or political or moral correctness. In addition, some laws have more "bite" than others and, as such, those that we deem minor infraction type laws, are often not enforced to the same degree as major infractions. Why is that? Have you ever driven through a stop sign on a rural road? Have you ever walked across a street where there is no cross-walk? Have you ever built something without obtaining a permit? Have you ever hired a contractor knowing that he (or she) was not licensed? Have you ever gone to a movie in the same theater for which you only paid for an earlier different movie? Have you ever moved seats to a better section when you paid for the cheaper nose-bleed seats? Have you ever driven above a specified speed limit?
Sometimes, the enforcement is lax, as well. The simplest example is the last one above, "speeding." Speeding is the slang term for driving faster than the posted speed limit. If I am on the freeway, and the posted limit is 65 mph, and I look down, and I'm going 66 mph, I'm "speeding." That said, it is also less than likely that a highway patrol officer will pull me over; why? Because the infraction is negligible. And yet, could I get a ticket? Should I? At what speed does the infraction become serious? And, why post a speed limit when it is not the actual limit?
Example 2: Is a building permit necessary to construct a home? No. The purpose of a building permit is to ensure that certain code requirements have been met; but, whether they are or not does not depend on the filing of the permit. That is simply the way that the city building inspector can confirm that the home is built, generally, to code. It's also a great revenue producer. The latter is unfortunately, the usual benchmark for a particular city, however. If a permit is not generated prior to construction, the city will fine the owner, and require that the fee plus a penalty charge be paid, along with the late application for a permit - which, as long as the $$ is there, more often than not, is approved. Moreover, oftentimes, the issue does not even arise.
Recently, in various sport leagues, certain laws have been tested by player infractions. These laws, which have been on the books for awhile, are enforceable through very subjective penalties. Should laws be enforced to the letter of the particular law? If this were done in each game, the game would never end. Each time an infraction is called, the clock stops. Think of basketball, where infractions up and down the court cause longer delays, and a choppy game. This same feeling would occur in life, and, frankly, there are not enough policemen, judges, and other public personnel to enforce all laws to the tee.
What are your thoughts? What do you think?
Have A Great Day!
October 20, 2010
Proposition 19 - Legalizing Marijuana Useage in California
In Calif, voters are going to decide whether to legalize marijuana use in an effort to regulate and tax the sale of the drug as well as shift enforcement costs to more serious crimes. The question (concern) is, regardless of the California legalization result, the US Government has already confirmed that it intends to continue its enforcement of federal law, which bans the use of marijuana. As we have learned in recent months, federal law generally trumps state/local law. This power is given to the United States government and Congress by the US Constitution, Article 1, Section 8 - a provision known simply and infamously as "The Commerce Clause".
While legal scholars and experts have struggled with the interpretation of the Commerce Clause over the years, making for some rather interesting Supreme Court cases, the gist of the Clause is that, to the extent that a state tries to regulate commerce which may be considered "interstate" - that is, trade which may cross state lines - roadways, waterways, airways, railways, etc., the federal government trumps such state law.
It is a prime reason why Arizona's recently attempted Immigration Law failed. The US has the absolute right and obligation to regulate and enforce the entry into the United States (not only from its power provided by the Commerce Clause, mind you). Civil Rights Legislation really expanded equal rights in the 1960's due to the Commerce Clause.
Now, Prop 19 appears to be written in an effort to avoid the constraints of the Commerce Clause - it legalizes the use, but not the distribution for sale of marijuana, except under strict guidelines and, likely, taxation by the local governments. That said, it must be purchased with the specific intent to use here in California. If the user intends to sell the drug or use the drug while participating in interstate commerce (ie, traveling), it opens the door for the Feds to enforce federal law, and shut down the operation.
I am not necessarily opposed to Prop 19, to the extent it can be strictly enforced and regulated. Liquor is the simplest example. Driving or otherwise conducting oneself in a manner where being impaired by drugs could create safety issues to the user or others should, clearly, be against the law. DUI or DWI laws are there for a reason. But, if drinking a beer or two or having a glass of wine with dinner is legal, then you would imagine that smoking a minimal amount of marijuana (alone or in confined private space) should not bother anyone.
On the other hand, the clear reverse position is that marijuana users cannot use a minimal amount or otherwise use the drug privately without affecting others. Beer and wine stay in a glass (usually); marijuana, like cigarette smoke, wafts outside the user's body more readily and frequently.
So, what do you think??
Have a Great Day!
While legal scholars and experts have struggled with the interpretation of the Commerce Clause over the years, making for some rather interesting Supreme Court cases, the gist of the Clause is that, to the extent that a state tries to regulate commerce which may be considered "interstate" - that is, trade which may cross state lines - roadways, waterways, airways, railways, etc., the federal government trumps such state law.
It is a prime reason why Arizona's recently attempted Immigration Law failed. The US has the absolute right and obligation to regulate and enforce the entry into the United States (not only from its power provided by the Commerce Clause, mind you). Civil Rights Legislation really expanded equal rights in the 1960's due to the Commerce Clause.
Now, Prop 19 appears to be written in an effort to avoid the constraints of the Commerce Clause - it legalizes the use, but not the distribution for sale of marijuana, except under strict guidelines and, likely, taxation by the local governments. That said, it must be purchased with the specific intent to use here in California. If the user intends to sell the drug or use the drug while participating in interstate commerce (ie, traveling), it opens the door for the Feds to enforce federal law, and shut down the operation.
I am not necessarily opposed to Prop 19, to the extent it can be strictly enforced and regulated. Liquor is the simplest example. Driving or otherwise conducting oneself in a manner where being impaired by drugs could create safety issues to the user or others should, clearly, be against the law. DUI or DWI laws are there for a reason. But, if drinking a beer or two or having a glass of wine with dinner is legal, then you would imagine that smoking a minimal amount of marijuana (alone or in confined private space) should not bother anyone.
On the other hand, the clear reverse position is that marijuana users cannot use a minimal amount or otherwise use the drug privately without affecting others. Beer and wine stay in a glass (usually); marijuana, like cigarette smoke, wafts outside the user's body more readily and frequently.
So, what do you think??
Have a Great Day!
October 8, 2010
Forgery - Getting Called On The Bluff
This morning at breakfast, my younger daughter brought up how well she can write, and how she can even write her friends' names about as well as they can, but that her teacher in school mentioned that if someone actually tries to sign another's name, that person would be sent to the principal's office. This drew immediate attention from both my wife and me. We explained that signing someone else's name can get you into lots of trouble, especially as you get older. My daughter seemed to take this information in stride, and promptly went onto another subject.
Then, this afternoon, as I was perusing a new client's documents, I noticed what seemed to be a forged signature (not of or on behalf of my client, thankfully!). The document in question, however, is a legal document that was passed off as an original.
It reminds me of a famous M*A*S*H TV episode where Corp Klinger is trying (as always) to get shipped back to Toledo. He has the opportunity to sign his release by forging his superior's name, Colonel Sherman T. Potter. In the end, his guilty conscience makes him remove the paper and destroy it ... why did he feel guilty? Because it's a lie, a sham, a fake, not real. It's also a major felony that would have had severe consequences for the Corporal if he had been caught.
In Corporal Klinger's case, ethical and moral considerations were not outwardly shown, though I think it played a role in his decision. His fear was getting caught and being discharged by court-martial and sent to the stockade.
Have you ever thought about forging someone else's name? Why? What was the situation? Did you go through with it? Were you caught? Do you continue to think about it? Just wondering.
Have A Great Day!
Then, this afternoon, as I was perusing a new client's documents, I noticed what seemed to be a forged signature (not of or on behalf of my client, thankfully!). The document in question, however, is a legal document that was passed off as an original.
It reminds me of a famous M*A*S*H TV episode where Corp Klinger is trying (as always) to get shipped back to Toledo. He has the opportunity to sign his release by forging his superior's name, Colonel Sherman T. Potter. In the end, his guilty conscience makes him remove the paper and destroy it ... why did he feel guilty? Because it's a lie, a sham, a fake, not real. It's also a major felony that would have had severe consequences for the Corporal if he had been caught.
In Corporal Klinger's case, ethical and moral considerations were not outwardly shown, though I think it played a role in his decision. His fear was getting caught and being discharged by court-martial and sent to the stockade.
Have you ever thought about forging someone else's name? Why? What was the situation? Did you go through with it? Were you caught? Do you continue to think about it? Just wondering.
Have A Great Day!
October 1, 2010
Ms. Allred's Step Into Politics - Ethical Issues For The Weary
I know, I know, once more, I'm deviating away from my construction 101 series. However, the recent claims by a former housekeeper of Ms. Meg Whitman, and specifically, the attorney representing that former housekeeper, are what drive me to this topic today.
Ms. Gloria Allred, generally perceived as a media starlight in terms of the types of cases she takes, but also generally respected in the legal industry for her skills. By taking Ms. Diaz on as a client at this juncture, however, and the rationale for doing so as explained by Ms. Allred, her representation reeks of ethical violations as well as moral improprieties.
Politicians and Attorneys - ironically, are both looked down upon by the vast majority of citizens and, yet, also respected by the masses as well. Normally, politicians create the laws and enforce the laws. Attorneys represent sides in disputes over how laws apply to a particular set of facts. However, in the instant matter, Ms. Whitman apparently did nothing wrong - upon the actual discovery that her employee was not a legal resident of the United States, she terminated that employee. Technically, she had a duty to disclose the identity and last known address of the illegal resident to the INS as well; morally, she decided not to. She employed someone based on facts obtained through a reputable domestic agency, viewed the person's identification and social security card, and likely interviewed the individual. She paid that person at least 2x minimum wage and retained her services for about 9 years. Then, when she discovered through the own employee's admission, that all was forgery and fraud, and that the employee was illegally in the country, I guess she could have kept mum and helped her obtain her legal status by "pulling a few strings" or by claiming that she'd help her once in office.
Basically, Ms. Whitman was damned if she did and damned if she didn't! But, what is Ms. Allred really representing her client for? Is she representing her to gain legal status? I don't think so. Is she representing her for violations of the Labor Code? Those only apply for legal residents, so I don't think so. Is she claiming that Ms. Whitman falsely kept her client from leaving her work? No. Is she representing her against the IRS? Doubt it. It seems, instead, that she is representing Ms. Diaz solely to upset the political apple cart.
"California Rule of Professional Conduct 3-200: A member (of the Bar) shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is: (A) To bring an action, ... [or] assert a position in litigation, ... without probable cause and for the purpose of harassing or maliciously injuring any person; ..."
Whether Republican or Democrat or Libertarian or any other Party affiliation, vote on the facts, not allegations that have little to do with anything but someone's wish to gain the political spotlight!
Have A Great Day/Weekend!
Ms. Gloria Allred, generally perceived as a media starlight in terms of the types of cases she takes, but also generally respected in the legal industry for her skills. By taking Ms. Diaz on as a client at this juncture, however, and the rationale for doing so as explained by Ms. Allred, her representation reeks of ethical violations as well as moral improprieties.
Politicians and Attorneys - ironically, are both looked down upon by the vast majority of citizens and, yet, also respected by the masses as well. Normally, politicians create the laws and enforce the laws. Attorneys represent sides in disputes over how laws apply to a particular set of facts. However, in the instant matter, Ms. Whitman apparently did nothing wrong - upon the actual discovery that her employee was not a legal resident of the United States, she terminated that employee. Technically, she had a duty to disclose the identity and last known address of the illegal resident to the INS as well; morally, she decided not to. She employed someone based on facts obtained through a reputable domestic agency, viewed the person's identification and social security card, and likely interviewed the individual. She paid that person at least 2x minimum wage and retained her services for about 9 years. Then, when she discovered through the own employee's admission, that all was forgery and fraud, and that the employee was illegally in the country, I guess she could have kept mum and helped her obtain her legal status by "pulling a few strings" or by claiming that she'd help her once in office.
Basically, Ms. Whitman was damned if she did and damned if she didn't! But, what is Ms. Allred really representing her client for? Is she representing her to gain legal status? I don't think so. Is she representing her for violations of the Labor Code? Those only apply for legal residents, so I don't think so. Is she claiming that Ms. Whitman falsely kept her client from leaving her work? No. Is she representing her against the IRS? Doubt it. It seems, instead, that she is representing Ms. Diaz solely to upset the political apple cart.
"California Rule of Professional Conduct 3-200: A member (of the Bar) shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is: (A) To bring an action, ... [or] assert a position in litigation, ... without probable cause and for the purpose of harassing or maliciously injuring any person; ..."
Whether Republican or Democrat or Libertarian or any other Party affiliation, vote on the facts, not allegations that have little to do with anything but someone's wish to gain the political spotlight!
Have A Great Day/Weekend!
September 29, 2010
Social Networking 101 - Beware of What you Post
I decided to take a slight break from my Construction 101 series to discuss this very relevant, common sense-like, issue which I am sure most people do not consider as they use the internet to connect with friends and family on a daily basis. From a recent ABAJournal Law News Now article published earlier today by Martha Neil, a recent New York case highlights the issue of whether your texts/emails/internet posts on Facebook, Twitter, Myspace, etc. may be accessed, even when such sites have privacy settings that limit who sees what.
The case dealt with a discovery challenge by the defendant to obtain material blocked by privacy settings after certain public settings showed inconsistent evidence into plaintiff's slip-and-fall injuries/damages claims.
In other words, be wary of what you post, and not just because you may be involved in a lawsuit. Employers, potential employers, insurance companies, clients ... anyone who has access to a computer can search for your name and eventually come up with information about you. Make sure that what you post is what you'd share with your employer, etc.
Have A Great Day!
The case dealt with a discovery challenge by the defendant to obtain material blocked by privacy settings after certain public settings showed inconsistent evidence into plaintiff's slip-and-fall injuries/damages claims.
In other words, be wary of what you post, and not just because you may be involved in a lawsuit. Employers, potential employers, insurance companies, clients ... anyone who has access to a computer can search for your name and eventually come up with information about you. Make sure that what you post is what you'd share with your employer, etc.
Have A Great Day!
September 28, 2010
Construction Work 101 - I Have To Pay What?!?
So, you've decided to remodel that kitchen after 15 years, and you've contacted a general contractor to come out and bid on the job. After he provides you with his card (and you have confirmed he is actively licensed by the CSLB - see prior post), he views your kitchen, speaks with you about customizing the materials, and writes you a bid. Wow, the bid is for $50,000.00! But, other bids show that $50,000 is actually within reason, so you call him back to agree to hire him. He provides you with a standard-looking contract that identifies the price as $50,000, to be paid in installments - $10,000 down, and $5,000 each week, with $5,000 held back until the job is complete. Wow, $10,000 down???
Actually, in California, a contractor is limited in what he can ask for the down payment: It must be 10% of the total price or $1,000, whichever is LESS! Don't get snookered into providing a down payment that is more than $1,000! Also, many contractors think there is a loophole so that they will ask you for $1,000 on signing, and then $10,000 in advance of demolition or for materials. I strongly recommend that the price be itemized out, at least generally, and preferably specifically. You do not want to get into a situation where the contractor asks for a bundle up front, but barely touches the property.
Related to this topic are change orders - I will discuss Change Orders in more detail next time. For now, be certain to sign off on each and every change requested or suggested or recommended by the contractor. Changes are required to be in writing, signed by the party to be charged. This is to protect the owner from unreasonable and surprise charges!
Have a Great Day!
Abe
Actually, in California, a contractor is limited in what he can ask for the down payment: It must be 10% of the total price or $1,000, whichever is LESS! Don't get snookered into providing a down payment that is more than $1,000! Also, many contractors think there is a loophole so that they will ask you for $1,000 on signing, and then $10,000 in advance of demolition or for materials. I strongly recommend that the price be itemized out, at least generally, and preferably specifically. You do not want to get into a situation where the contractor asks for a bundle up front, but barely touches the property.
Related to this topic are change orders - I will discuss Change Orders in more detail next time. For now, be certain to sign off on each and every change requested or suggested or recommended by the contractor. Changes are required to be in writing, signed by the party to be charged. This is to protect the owner from unreasonable and surprise charges!
Have a Great Day!
Abe
September 24, 2010
Construction Work 101 - Licensed vs. Unlicensed
In California, contractors (and subcontractors) must be licensed by the Contractor's State Licensing Board (CSLB) if they wish to provide any construction work for the general public where such work is for $500 or more. (Bus & Prof Code Section 7031, et seq). How does the State punish those who violate the rule (and get caught)? By forcing them to pay back any money received for the unlicensed work. In fact, even if the work was perfect, the hirer can file a lawsuit for Violation of B&P Section 7031, and under the statutes that follow, will be entitled to, at a minimum, all money paid to the unlicensed contractor. It doesn't even matter if the hirer knew that the contractor was not licensed - makes no difference.
Similarly, insurance companies may have the right to expressly deny coverage of any claim against its insured where it discovers that the insured was not properly licensed. That can pose a major problem if the work performed ends up being shoddy, defective, or otherwise causes damage to the hirer's property.
How do you know whether a contractor is licensed? The first thing to do is ask for the contractor's license. Then, you can confirm whether the license is active, suspended, or non-existent by reviewing the CSLB website - www.cslb.ca.gov. A second way to determine whether a contractor is licensed is through their advertising material provided to you - letterhead, bid sheet, business card - these items are required by law to have the contractor's license on them in plain view. Thus, if you hire a plumber and his truck does not have a license number on it, chances are, he may not be licensed to perform the work.
The clear rationale for requiring contractors to be licensed is that you expect a higher degree of care to be used by a licensed contractor than by an unlicensed contractor. Similar to your physician, who is licensed by the state in which he practices medicine, or your attorney, or your accountant, or your real estate agent.
Consumer Beware! In Part II, I'll look at The Amount To Be Charged.
Have A Great Day!
Similarly, insurance companies may have the right to expressly deny coverage of any claim against its insured where it discovers that the insured was not properly licensed. That can pose a major problem if the work performed ends up being shoddy, defective, or otherwise causes damage to the hirer's property.
How do you know whether a contractor is licensed? The first thing to do is ask for the contractor's license. Then, you can confirm whether the license is active, suspended, or non-existent by reviewing the CSLB website - www.cslb.ca.gov. A second way to determine whether a contractor is licensed is through their advertising material provided to you - letterhead, bid sheet, business card - these items are required by law to have the contractor's license on them in plain view. Thus, if you hire a plumber and his truck does not have a license number on it, chances are, he may not be licensed to perform the work.
The clear rationale for requiring contractors to be licensed is that you expect a higher degree of care to be used by a licensed contractor than by an unlicensed contractor. Similar to your physician, who is licensed by the state in which he practices medicine, or your attorney, or your accountant, or your real estate agent.
Consumer Beware! In Part II, I'll look at The Amount To Be Charged.
Have A Great Day!
September 22, 2010
Would you please "HP" me a copy?"
Today I saw an "advertisement" - or plea - from Xerox which was used to request people not to use its name in vain. As most of us know, Xerox is a large international technology and research company which, for a time, was primarily known for its commercial copier machines. As such, when workers went to copy documents, for a long period of time, the copies were made utilizing a Xerox machine. However, by the 1990's, and certainly today, there are numerous companies that offer commercial/business copiers - Toshiba, Hewlett-Packard/HP, Fuji, Brother, Epson, etc., to name only a few. Yet, the stereotype has been branded into our brain: Can you "xerox" me a copy of this document?
Xerox, of course, has a trademark for the use of its name in the context of copying documents, using copiers, or other technology-related services and products. Its fear, and I suppose it is real, is that its trademark registration will be terminated at some point once the usage of the term, 'xerox', becomes so commonplace that no one associates it with the company Xerox, but with the copying of a document.
Xerox, in its ad, notes that the term, zipper, was once a trademark for a Zipper brand name. However, over time, the trademark was lost, as all zipper-like products became known as zippers. To some degree, Coca Cola likely had a similar argument - how many times have you requested a Coke in a restaurant, only to be served a different cola - such as Pepsi? Cereal is like this as well - Frosted Flakes remind me of a colorful tiger who yells "Grreeat!" But, many restaurants and supermarkets carry Frosty Flakes or other similar sounding brands.
What other brands can you think of that have lost their trademarks to common usage? Do you think Xerox will be able to maintain its trademark? We'll find out in the months and years to come.
Have A Great Day!
Xerox, of course, has a trademark for the use of its name in the context of copying documents, using copiers, or other technology-related services and products. Its fear, and I suppose it is real, is that its trademark registration will be terminated at some point once the usage of the term, 'xerox', becomes so commonplace that no one associates it with the company Xerox, but with the copying of a document.
Xerox, in its ad, notes that the term, zipper, was once a trademark for a Zipper brand name. However, over time, the trademark was lost, as all zipper-like products became known as zippers. To some degree, Coca Cola likely had a similar argument - how many times have you requested a Coke in a restaurant, only to be served a different cola - such as Pepsi? Cereal is like this as well - Frosted Flakes remind me of a colorful tiger who yells "Grreeat!" But, many restaurants and supermarkets carry Frosty Flakes or other similar sounding brands.
What other brands can you think of that have lost their trademarks to common usage? Do you think Xerox will be able to maintain its trademark? We'll find out in the months and years to come.
Have A Great Day!
September 21, 2010
Pro Se Litigants and Ghost Lawyering
I recently read an article in the ABA Journal (Sept 2010) regarding the increase in pro se litigation - that is, in parties that represent themselves, either as a plaintiff or defendant. 1,000 state court judges throughout the US were polled regarding the judicial system in 2009. More than 60% set there was a rise in pro se litigation; 62% said that pro se litigants were on the short end of the stick more than their lawyer represented opponents. And, 90% said that pro se litigants "had a negative effect on the courts."
However, the article then discussed how many of these pro se litigants were utilizing lawyers to assist them with drafting court-filed documents - such as the initial pleadings, motions, and the like. This type of legal representation is generally known as "limited scope" representation. The general public refers to it as "ghost lawyering".
I, too, have seen a rise in this type of service, and welcome it. Whether the services are based on an hourly fee or some type of flat rate, the client feels satisfied in knowing that it is receiving legal services, but at a much lower charge than the norm. Further, it allows the client to better appreciate the cost of such services, and can thus, have a better expectation of the charges it will be required to pay until the outcome of the matter arrives.
The key point of the article was to stress that the courts are beginning to change long-standing opinions regarding "ghost" lawyers assisting pro se litigants - any assistance, in effect, leads to a "better prepared litigant, and thus, a more efficiently operated court." I concur, and would anticipate this trend to continue in light of the economic concerns that continue to affect persons and businesses throughout the US and here in California.
Have A Great Day!
However, the article then discussed how many of these pro se litigants were utilizing lawyers to assist them with drafting court-filed documents - such as the initial pleadings, motions, and the like. This type of legal representation is generally known as "limited scope" representation. The general public refers to it as "ghost lawyering".
I, too, have seen a rise in this type of service, and welcome it. Whether the services are based on an hourly fee or some type of flat rate, the client feels satisfied in knowing that it is receiving legal services, but at a much lower charge than the norm. Further, it allows the client to better appreciate the cost of such services, and can thus, have a better expectation of the charges it will be required to pay until the outcome of the matter arrives.
The key point of the article was to stress that the courts are beginning to change long-standing opinions regarding "ghost" lawyers assisting pro se litigants - any assistance, in effect, leads to a "better prepared litigant, and thus, a more efficiently operated court." I concur, and would anticipate this trend to continue in light of the economic concerns that continue to affect persons and businesses throughout the US and here in California.
Have A Great Day!
September 20, 2010
Prophylactic Legal Services
Prophylactics - Generally, we think of the term, "prophylactic" when we describe the prevention of sexually transmitted diseases or birth control. However, the term is actually defined as "acting to defend against or prevent; protective." The clear connotation is that a person utilizing a prophylactic device is trying to prevent something from happening - ie, getting pregnant or getting a sexually transmitted disease (STD). As with other areas, sexually-related prophylactic devices come in different forms and cost different amounts. Generally, the more costly the device, the better it works (not always, of course).
Also, as we know, if prophylactic devices are not utilized, the risk of failing rises. If failure results, the costs go up exponentially.
In the legal realm, protecting one's clients is paramount. Protecting one's clients in a cost effective manner is key. Prevention occurs prior to the event, not after. Unfortunately, a client often places his business at enormous risk in light of the cost of prophylactic legal services, tending instead to rely on less costly protective resources and, in many cases, decides simply that the risk is too remote. The vast majority of such cases arise from smaller businesses, sole proprietors, small partnerships, and local businesses, whose expenditures cannot be "wasted" on unnecessary costs.
Unfortunately, there is a saturation of litigation in today's world. One reason is because too many businesses rely on their own experiences in handling legal matters that directly affect the business bottom line. My simple and recurring line to most clients is that anything the attorney can do for you, you can handle on your own. That's right: you can file your own corporate documentation to start a business; you can draft your own contracts; set up your own employee guidelines; you can represent yourself in court, too. However, usually, it is only in the latter instance that a business retains legal counsel. By then, the damage is done, and the cost to fix such damage will be much more than the preventive services that could have negated or minimized the problem in the first place.
Protect your business: Use legal services to avoid the "legal" STD - litigation!
Have A Great Day!
Also, as we know, if prophylactic devices are not utilized, the risk of failing rises. If failure results, the costs go up exponentially.
In the legal realm, protecting one's clients is paramount. Protecting one's clients in a cost effective manner is key. Prevention occurs prior to the event, not after. Unfortunately, a client often places his business at enormous risk in light of the cost of prophylactic legal services, tending instead to rely on less costly protective resources and, in many cases, decides simply that the risk is too remote. The vast majority of such cases arise from smaller businesses, sole proprietors, small partnerships, and local businesses, whose expenditures cannot be "wasted" on unnecessary costs.
Unfortunately, there is a saturation of litigation in today's world. One reason is because too many businesses rely on their own experiences in handling legal matters that directly affect the business bottom line. My simple and recurring line to most clients is that anything the attorney can do for you, you can handle on your own. That's right: you can file your own corporate documentation to start a business; you can draft your own contracts; set up your own employee guidelines; you can represent yourself in court, too. However, usually, it is only in the latter instance that a business retains legal counsel. By then, the damage is done, and the cost to fix such damage will be much more than the preventive services that could have negated or minimized the problem in the first place.
Protect your business: Use legal services to avoid the "legal" STD - litigation!
Have A Great Day!
September 17, 2010
ADR - Win/Win or Lose/Lose?
Have you ever had a disagreement with someone? I'm sure you have - in our personal life, those disagreements likely began at an early age, with our siblings and our parents. We thereafter branched out, and began disagreeing with friends, boyfriends/girlfriends, teachers, bosses, co-workers, and eventually, spouses, your own children, and perhaps law enforcement (hopefully not too much of the latter). How you resolved those disagreements likely shaped who you have become, to some degree.
As we get older, these disagreements can become more difficult to quietly resolve; indeed, some get quite ugly - just look at the McCourt divorce (the extreme). Best friends have partnered to start businesses, only to separate a few years later, and no longer friends. The extent of the disagreement, however, can influence how the parties come away from such disputes. True, filing a lawsuit is perhaps the easiest method to force a resolution (other than giving in to the other's demands, perhaps). But it is the lawsuit which creates a course of action with a statutory end - trial. The problem, as those experienced in litigation can tell you, is that litigation costs $$$. More than that, however, it costs your time away from whatever you could be doing - like running your business. It's stressful, as well. You could end up losing. You could end up fighting in litigation for several months, and even years, before a final determination is made.
How can disputing parties resolve their differences without the cost and headaches associated in litigation? Through well planned alternative dispute resolution or "ADR". The concept is certainly not new, and indeed, ADR is strongly encouraged by the court system to reduce its large quantity of litigation. Several industries in the business world have addressed ADR through specific contractual language, such as requiring mediation and then waiving the right to court litigation in favor of binding arbitration. There are numerous different ADR companies - the American Arbitration Association ("AAA") may be one of the more well known, but there are others: JAMS-Endispute, Judicate West, ARC, and a whole litany of private ADR professionals waiting to assist angry sides resolve their differences.
Generally, ADR is less expensive than full-fledged court litigation, though not always. The huge factor in certain arbitration cases is that the matter is binding - thus, once a decision is finalized, neither side can appeal the arbitrator's ruling (yes, there are exceptions). In such case, a matter is often decided within a year or so of the date the demand was originally served. Still, binding arbitration remains similar to a "bench" (no jury) trial, and can extend on for several days, depending on the amount of evidence to be introduced by each side.
Mediation, a non-binding form of ADR, is a great way for sides to resolve differences prior to the final battle (binding arbitration or trial). Though non-binding, the two+ sides choose a neutral - usually a retired judge or a private attorney with several years experience - to listen to each side's primary case, and then to work each side into a compromised position - both sides give up something to reach an accord. In this case, giving up something ends up being a win/win since the time and cost of continuing to do battle cease should a settlement be reached.
It is important to note, however, that there are times when ADR is not beneficial to a particular case. Those times, as rare as they are, do exist. However, in most instances, ADR is an important tool utilized by disputing parties to keep costs down and time disputing minimized to a degree.
More on ADR to come ...
Have A Great Day!
As we get older, these disagreements can become more difficult to quietly resolve; indeed, some get quite ugly - just look at the McCourt divorce (the extreme). Best friends have partnered to start businesses, only to separate a few years later, and no longer friends. The extent of the disagreement, however, can influence how the parties come away from such disputes. True, filing a lawsuit is perhaps the easiest method to force a resolution (other than giving in to the other's demands, perhaps). But it is the lawsuit which creates a course of action with a statutory end - trial. The problem, as those experienced in litigation can tell you, is that litigation costs $$$. More than that, however, it costs your time away from whatever you could be doing - like running your business. It's stressful, as well. You could end up losing. You could end up fighting in litigation for several months, and even years, before a final determination is made.
How can disputing parties resolve their differences without the cost and headaches associated in litigation? Through well planned alternative dispute resolution or "ADR". The concept is certainly not new, and indeed, ADR is strongly encouraged by the court system to reduce its large quantity of litigation. Several industries in the business world have addressed ADR through specific contractual language, such as requiring mediation and then waiving the right to court litigation in favor of binding arbitration. There are numerous different ADR companies - the American Arbitration Association ("AAA") may be one of the more well known, but there are others: JAMS-Endispute, Judicate West, ARC, and a whole litany of private ADR professionals waiting to assist angry sides resolve their differences.
Generally, ADR is less expensive than full-fledged court litigation, though not always. The huge factor in certain arbitration cases is that the matter is binding - thus, once a decision is finalized, neither side can appeal the arbitrator's ruling (yes, there are exceptions). In such case, a matter is often decided within a year or so of the date the demand was originally served. Still, binding arbitration remains similar to a "bench" (no jury) trial, and can extend on for several days, depending on the amount of evidence to be introduced by each side.
Mediation, a non-binding form of ADR, is a great way for sides to resolve differences prior to the final battle (binding arbitration or trial). Though non-binding, the two+ sides choose a neutral - usually a retired judge or a private attorney with several years experience - to listen to each side's primary case, and then to work each side into a compromised position - both sides give up something to reach an accord. In this case, giving up something ends up being a win/win since the time and cost of continuing to do battle cease should a settlement be reached.
It is important to note, however, that there are times when ADR is not beneficial to a particular case. Those times, as rare as they are, do exist. However, in most instances, ADR is an important tool utilized by disputing parties to keep costs down and time disputing minimized to a degree.
More on ADR to come ...
Have A Great Day!
September 16, 2010
Business 101 - Happy 'New' Year and Taking Stock.
Last night, I attended a local networking mixer and listened to the substituted-at-the-last-minute speaker. The mixer, at a local synagogue, is supported by the Rabbi, who, frankly, provided one of the best business lectures I've listened to over the past several years. Here is a synopsis of what I heard last night and my take on it:
For those in the know, we celebrate more than one new year in the world; there is the modern New Year (January 1st); but there are also cultural/religious New Years based on different calendars. The Jewish New Year, or Rosh Hashanah, is based on the Gregorian calendar, and began year 5771 on September 8th at sundown. As the Rabbi explained last night, before we end the prior year, many of us "take stock" of our lives and give resolutions as to how we hope to improve our respective lives as we proceed through the next year, making it "new" for our souls.
Businesses and other organizations do very similar things - at the end of its fiscal year, a business looks at its books to determine whether it was a "profitable" year or not. True, businesses tend to "take stock" multiple times throughout the year (and should), but it is at the end of the fiscal year, and the beginning of its new fiscal year that a business evaluates its business practices to determine what worked and what didn't, so a new plan of attack can be created to make the next fiscal year better than the last.
Making time to "take stock" is critical for a business's survival. From a legal context, it is a great time to review the business entity structure - is it working? Is the tax appropriate? Are the legal requirements being maintained? At the same time, is the employee handbook up-to-date? Have any new laws been enacted that would impact the business? Are contracts working? Have there been any customer relation issues? Employment concerns? Vendor issues? Is a merger, sale, or purchase possible that could benefit the owners and the business? Would outsourcing be beneficial or not? Are prices set accordingly? Is marketing working? Are advertisements appropriate?
And, although it is customary to review these items at the close of the fiscal year (or calendar year or whatever year you follow), the better practice is to always be taking stock of the different aspects that make up your business. Take a few minutes to set aside a time in the near future, and "Take Stock". Happy New Year!
Have A Great Day!
For those in the know, we celebrate more than one new year in the world; there is the modern New Year (January 1st); but there are also cultural/religious New Years based on different calendars. The Jewish New Year, or Rosh Hashanah, is based on the Gregorian calendar, and began year 5771 on September 8th at sundown. As the Rabbi explained last night, before we end the prior year, many of us "take stock" of our lives and give resolutions as to how we hope to improve our respective lives as we proceed through the next year, making it "new" for our souls.
Businesses and other organizations do very similar things - at the end of its fiscal year, a business looks at its books to determine whether it was a "profitable" year or not. True, businesses tend to "take stock" multiple times throughout the year (and should), but it is at the end of the fiscal year, and the beginning of its new fiscal year that a business evaluates its business practices to determine what worked and what didn't, so a new plan of attack can be created to make the next fiscal year better than the last.
Making time to "take stock" is critical for a business's survival. From a legal context, it is a great time to review the business entity structure - is it working? Is the tax appropriate? Are the legal requirements being maintained? At the same time, is the employee handbook up-to-date? Have any new laws been enacted that would impact the business? Are contracts working? Have there been any customer relation issues? Employment concerns? Vendor issues? Is a merger, sale, or purchase possible that could benefit the owners and the business? Would outsourcing be beneficial or not? Are prices set accordingly? Is marketing working? Are advertisements appropriate?
And, although it is customary to review these items at the close of the fiscal year (or calendar year or whatever year you follow), the better practice is to always be taking stock of the different aspects that make up your business. Take a few minutes to set aside a time in the near future, and "Take Stock". Happy New Year!
Have A Great Day!
September 15, 2010
Legally Correct vs. Morally Correct vs. Politically Correct?
Should the NY Mosque be built within the close proximity to Ground Zero? Should women be allowed to wear religious head wraps to work? Should women be allowed into professional male athletes' locker rooms to conduct interviews? Should college athletes be paid for their athletic services or otherwise be entitled to receive gifts/etc while at school?
Interestingly, what is legally right or politically correct does not always jive with what is morally or ethically correct, given particular circumstances. Our founding forefathers believed that property rights were sacred; that while the government could impose certain taxes to secure government revenue, a person's property was sacred and that person could use the property for his quiet enjoyment. Now, of course there were/remain exceptions, such as when the enjoyment is not quiet - which means, simply, that the use of a particular property disrupts the use of someone else's property. I don't think, on its own, the construction of a mosque does anything to disrupt any other person's use of his or her property. In other words, the current owner of the property has the legal right to build the mosque at that location. But, should he in light of the circumstances? I believe that the owner should not build the mosque at that location due to the obvious facts surrounding that location, at least not at this time.
Should women or men be allowed to wear religious head wraps at work? This time, there is a political right - the right of religious freedom - to do so. However, our society has limited such right when it interferes with the job's duties. A woman would likely not be able to wear a wrap and perform firefighting duties, but could perform legal duties as an attorney. What if the President of the US wore a head wrap because of his religious views? I cannot imagine anyone having any rational dispute with this. So, in this case, I do not see a moral issue, but rather an employer concern over how a job is performed, and whether the religious requirements would hinder the performance of that job.
Should a woman be refused entry into a male locker room? Should a man be refused entry into a female locker room? Legally, if one gender is allowed into the locker room, then the other gender should have equal access. This turns on the ability to obtain stories/interviews equally. It is both legal and politically correct. Morally however, I think there is an issue. Locker rooms are often hallowed ground ... at least they used to be. More and more, there are press rooms off to the side, but cameras have infiltrated the locker room area in most sports. The question is whether this places the interviewer or the player(s) at a disadvantage that could create a question as to whether conduct was appropriate. If a player drops his towel, showing his birth beauty, does that create an issue if a reporter is in the room? I don't know. I do know this, however: most news agencies place a male in a male locker room, a female in a female locker room; not always, but often. The rationale is that improprieties between genders are more likely to occur than between persons of the same gender (a Pittsburgh quarterback comes to mind). Prevention before reaction.
Finally, should a college athlete be entitled to accept gifts for his play? Legally, the answer is no. College sports have always been deemed amateur sporting events; thus, there is a prohibition against a player's receiving anything of value in exchange for his continued services. However, is a "reward" for those services or a gift resulting from those services considered compensation??? Compensation is value received in consideration of the promise to perform services. It is earned upon the completion of the services. However, if it is not promised in exchange of those services, it is a gift. Should gifts be allowed? A gift is something that is given without consideration provided by the receiver. The receiver need not perform anything to receive the gift. So, if an agent gives a college athlete a car for his family's use during his school years, without the promise by that athlete that he will utilize that agent's services upon completion of school, that is a gift.
Is the gift legal? I think it should be, though presently it is not. More on this to come soon.
In the meantime, ... Have a Great Day!
Interestingly, what is legally right or politically correct does not always jive with what is morally or ethically correct, given particular circumstances. Our founding forefathers believed that property rights were sacred; that while the government could impose certain taxes to secure government revenue, a person's property was sacred and that person could use the property for his quiet enjoyment. Now, of course there were/remain exceptions, such as when the enjoyment is not quiet - which means, simply, that the use of a particular property disrupts the use of someone else's property. I don't think, on its own, the construction of a mosque does anything to disrupt any other person's use of his or her property. In other words, the current owner of the property has the legal right to build the mosque at that location. But, should he in light of the circumstances? I believe that the owner should not build the mosque at that location due to the obvious facts surrounding that location, at least not at this time.
Should women or men be allowed to wear religious head wraps at work? This time, there is a political right - the right of religious freedom - to do so. However, our society has limited such right when it interferes with the job's duties. A woman would likely not be able to wear a wrap and perform firefighting duties, but could perform legal duties as an attorney. What if the President of the US wore a head wrap because of his religious views? I cannot imagine anyone having any rational dispute with this. So, in this case, I do not see a moral issue, but rather an employer concern over how a job is performed, and whether the religious requirements would hinder the performance of that job.
Should a woman be refused entry into a male locker room? Should a man be refused entry into a female locker room? Legally, if one gender is allowed into the locker room, then the other gender should have equal access. This turns on the ability to obtain stories/interviews equally. It is both legal and politically correct. Morally however, I think there is an issue. Locker rooms are often hallowed ground ... at least they used to be. More and more, there are press rooms off to the side, but cameras have infiltrated the locker room area in most sports. The question is whether this places the interviewer or the player(s) at a disadvantage that could create a question as to whether conduct was appropriate. If a player drops his towel, showing his birth beauty, does that create an issue if a reporter is in the room? I don't know. I do know this, however: most news agencies place a male in a male locker room, a female in a female locker room; not always, but often. The rationale is that improprieties between genders are more likely to occur than between persons of the same gender (a Pittsburgh quarterback comes to mind). Prevention before reaction.
Finally, should a college athlete be entitled to accept gifts for his play? Legally, the answer is no. College sports have always been deemed amateur sporting events; thus, there is a prohibition against a player's receiving anything of value in exchange for his continued services. However, is a "reward" for those services or a gift resulting from those services considered compensation??? Compensation is value received in consideration of the promise to perform services. It is earned upon the completion of the services. However, if it is not promised in exchange of those services, it is a gift. Should gifts be allowed? A gift is something that is given without consideration provided by the receiver. The receiver need not perform anything to receive the gift. So, if an agent gives a college athlete a car for his family's use during his school years, without the promise by that athlete that he will utilize that agent's services upon completion of school, that is a gift.
Is the gift legal? I think it should be, though presently it is not. More on this to come soon.
In the meantime, ... Have a Great Day!
September 14, 2010
Calif SB 183 - Carbon Monoxide Detectors To Be Req'd
For years, there has been an intense debate as to whether to require homeowners to install carbon monoxide detectors in their homes. In May 2010, the California Legislature enacted SB 183, which will require all existing homeowners to install carbon monoxide detectors in their homes or face a fine, currently $200.00. The law, which technically takes effect on July 1, 2011, is great news for the health and safety of homeowners and their families/guests. Carbon monoxide is a silent killer, odorless, yet very deadly.
I strongly urge all homeowners in California (or anywhere for that matter) to install such a monitor now, even before the July 1, 2011, deadline. Note, however, that unless there is actually an emergency at the home, or the home is set for sale, this law will not be strictly enforced (in other words, "Big Brother" won't be making spot checks that I'm aware of). However, all real estate brokers/agents/etc. should be put on notice that a new disclosure will be required by sellers beginning July 1, 2011.
Have a great day!
I strongly urge all homeowners in California (or anywhere for that matter) to install such a monitor now, even before the July 1, 2011, deadline. Note, however, that unless there is actually an emergency at the home, or the home is set for sale, this law will not be strictly enforced (in other words, "Big Brother" won't be making spot checks that I'm aware of). However, all real estate brokers/agents/etc. should be put on notice that a new disclosure will be required by sellers beginning July 1, 2011.
Have a great day!
Labor Contracts - Which Side Is Held Hostage?
As you will quickly come to learn from reading my posts, I am both a legal nut as well as a sports nut. My law practice is primarily focused on business and real estate law, with an "eye" for contractual matters. Sports law and the related entertainment law are two niches within the business realm.
If you, like me, are a baseball fan, you may recall a player named Rickey Henderson. Mr. Henderson, a recently inducted Hall of Fame player, was one of the standout speed demons of the 80's, a lead off batter who, once on base, was pretty much a lock to score because he could get to 2nd base on his own. He also had surprising power and could occasionally hit a long ball and drive in runs. The Oakland Athletics signed him to what was at the time (early 80's) a nice multiple year contract. At some point, Mr. Henderson's notoriety for stealing bases drew to him a large fan base, which, in turn, inflated Mr. Henderson's ego even more than it already was. He decided to hold out if the team did not renegotiate his contract. Thus, in the sports age, we entered a new phase, a new chapter in labor, a new beginning to contractual enforcement.
What would happen if you walked into a Honda dealership, negotiated a final price of $30,000 for a Honda, and, after purchasing the car, driving off the lot, and spending a year or two with the car, received a call from Honda claiming that the car's popularity required that they renegotiate the price? What if the dealer held the pink slip because you had financed the car through its finance department?
In the real estate field, homeowners seek refinances of their mortgages all the time. However, the refi is a different animal since both parties agree. Think about it, the news is ripe with homeowners pleading with the banks for loan modifications, refinances, or approvals for short sales. In each of the foregoing instances, the homeowner is seeking lender approval to modify the contractual terms previously agreed to. The lender, as we have also seen over the past 2-3 years, may not be inclined to accept the new terms. If the new terms are NOT agreed to, the homeowner will either continue to pay the old monthly amount, or more likely, be forced into foreclosure. In California, a homeowner may walk away from the contract (and the house), but the lender is limited in its ability to seek further $$ from the homeowner, except in certain instances, because California is a non-recourse state - the amount owed is secured by real property, which is the lender's sole recovery tool (again, exceptions abound).
The ability to hold out is a key component of sports player negotiations - several players held out or threatened to do so prior to the start of the 2010-2011 NFL season. But, should the parties have a mechanism to nip such actions in the bud? If you execute a 3 year contract, and after year 1 want to revise the contract to get more $$ or else you won't play, can the team demand the return of already earned $$? I guess it would depend on how the contract was written? Is the compensation yearly based or is it contract term based?
Importantly, and as you will soon learn by reading my daily posts, I am a prolific believer in "preventive" law - that is, in making certain that your contract takes into account as many potential liabilities as possible, and making certain that you are protected in the event of unforeseen circumstances that may arise down the road.
Have a great day!
If you, like me, are a baseball fan, you may recall a player named Rickey Henderson. Mr. Henderson, a recently inducted Hall of Fame player, was one of the standout speed demons of the 80's, a lead off batter who, once on base, was pretty much a lock to score because he could get to 2nd base on his own. He also had surprising power and could occasionally hit a long ball and drive in runs. The Oakland Athletics signed him to what was at the time (early 80's) a nice multiple year contract. At some point, Mr. Henderson's notoriety for stealing bases drew to him a large fan base, which, in turn, inflated Mr. Henderson's ego even more than it already was. He decided to hold out if the team did not renegotiate his contract. Thus, in the sports age, we entered a new phase, a new chapter in labor, a new beginning to contractual enforcement.
What would happen if you walked into a Honda dealership, negotiated a final price of $30,000 for a Honda, and, after purchasing the car, driving off the lot, and spending a year or two with the car, received a call from Honda claiming that the car's popularity required that they renegotiate the price? What if the dealer held the pink slip because you had financed the car through its finance department?
In the real estate field, homeowners seek refinances of their mortgages all the time. However, the refi is a different animal since both parties agree. Think about it, the news is ripe with homeowners pleading with the banks for loan modifications, refinances, or approvals for short sales. In each of the foregoing instances, the homeowner is seeking lender approval to modify the contractual terms previously agreed to. The lender, as we have also seen over the past 2-3 years, may not be inclined to accept the new terms. If the new terms are NOT agreed to, the homeowner will either continue to pay the old monthly amount, or more likely, be forced into foreclosure. In California, a homeowner may walk away from the contract (and the house), but the lender is limited in its ability to seek further $$ from the homeowner, except in certain instances, because California is a non-recourse state - the amount owed is secured by real property, which is the lender's sole recovery tool (again, exceptions abound).
The ability to hold out is a key component of sports player negotiations - several players held out or threatened to do so prior to the start of the 2010-2011 NFL season. But, should the parties have a mechanism to nip such actions in the bud? If you execute a 3 year contract, and after year 1 want to revise the contract to get more $$ or else you won't play, can the team demand the return of already earned $$? I guess it would depend on how the contract was written? Is the compensation yearly based or is it contract term based?
Importantly, and as you will soon learn by reading my daily posts, I am a prolific believer in "preventive" law - that is, in making certain that your contract takes into account as many potential liabilities as possible, and making certain that you are protected in the event of unforeseen circumstances that may arise down the road.
Have a great day!
September 13, 2010
My 1st Blog
Today I discovered Google Blogger. I'm trying several different avenues to blog, so please bear with me while I work out the kinks in this process. First off, a bit about me - I'm a 14+ year attorney "practicing" law in sunny Southern California, in the bedroom community known affectionately as South Orange County. I've been married for more than 18 years, have 3 wonderful kids, and have had my own law practice for the past 3 years or so. My law practice is concentrated in 2 broad areas: business and real estate. I handle transactional matters as well as litigation matters, and have appeared in courts throughout California. I have represented start-up businesses and on-going businesses, sole proprietors, homeowners, sellers, buyers, brokers/agents, and construction entities in a wide (wide) array of issues.
My hope in presenting this blog is to provide readers with some legal knowledge, news, history, and a certain amount of entertainment.
So, ... onward and upward!
My hope in presenting this blog is to provide readers with some legal knowledge, news, history, and a certain amount of entertainment.
So, ... onward and upward!
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