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Sperm Bank Fraud Lawsuits in California

Posted in Business and Real Estate Litigation,Fraud on July 25, 2016

We just reviewed an interesting article in the New York Times about sperm bank fraud lawsuits in California.  Couples and individuals trust sperm banks in collecting and storing their sperm securely for a later date.  However, sperm banks have been found mishandling and misrepresenting the donated sperm.  Whether missing, misplaced, or containing disorders, these vials are not being maintained with… READ MORE

California Trade Secret Law Preempts Other Claims

As Bloomberg BNA’s reporting on the Oculus Rift lawsuit notes, California law limits the types of claims plaintiffs may bring in trade secret lawsuits.  Unlike in other lawsuits, where plaintiffs are basically allowed to throw the kitchen sink at a defendant, with regard to trade secret theft allegations, California plaintiffs are forced to narrow their lawsuits.  This basically means they are only… READ MORE

San Diego Employee Trade Secret Theft

As noted in the CEBblog on trade secrets, one of the most likely times for actual (or alleged) San Diego employee trade secret theft is when an employee leaves a company.  In her blog, Julie Brooks does a great job informing lawyers and companies of the potential for trade secrets theft when an employee leaves, and recommending the use of a proper… READ MORE

What is the Definition of Independent Contractor in California?

California employers and employees often want to know: what is the definition of independent contractor in California?  More specifically, how does an independent contractor differ from an employee in California?  This question and classification can have a lot of ramifications.  As just one example, one of our clients recently received a California Labor Commissioner Notice, after a purported employee filed… READ MORE

Fraud Lawsuits Against California Wine Company

Posted in Business and Real Estate Litigation,Fraud on January 19, 2016

Several fraud lawsuits against California wine company, Premier Cru, were put on hold recently after the company filed bankruptcy.  Consumers filed the fraud lawsuits against the California wine merchant after paying for expensive wines, but the company failed to deliver the product. As reported by WineSpectator.com, thePremier Cru entity filed bankruptcy after racking up an alleged $70 million in liabilities, including debts… READ MORE

California’s “Seven-Year Rule” for Employment Contracts

The hard rock band Avenged Sevenfold is in a contract dispute with its label, Warner Bros.  The band is attempting to cancel its recording contract based on California’s “Seven-Year Rule” for employment contracts.  After receiving the band’s notice of intent to cancel, the label filed a breach of contract lawsuit. According to Billboard, the band originally agreed to provide the label with 5… READ MORE

California Organic Foods Fraud Lawsuits

Posted in Fraud on January 16, 2016

In Quesada v. Herb Thyme Farms, Inc., the California Supreme Court recently clarified that consumers may sue companies that falsely label their products organic.  California Organic Foods Fraud Lawsuits may exists where the foods are outright not organic, or where organic foods are mixed with non-organic, both of which Michelle Quesada alleges in her purported class action against Herb Thyme Farms,… READ MORE

California Insurance Company’s Duty to Defend Lawsuits

Posted in Insurance Bad Faith on January 13, 2016

In California, when you have a liability policy with an insurance company, it often has a duty to defend a lawsuit against you.  The duty to defend exists whether or not the liability claim is actually covered under the policy.  The test for a California insurance company’s duty to defend lawsuits is only whether the claim is potentially covered under the policy. If… READ MORE

How to Keep Secret a California Trade Secret

Posted in Business and Real Estate Litigation on November 3, 2015

In California, a trade secret is information that derives value from not being generally known, and the person who owns it must keep it secret. There is no general rule.  Whether enough has been done to maintain secrecy is measured on the particular facts of every case. The trade secret owner must take reasonable steps under the circumstances to maintain secrecy.  Depending on… READ MORE

A Trade Secret can be Anything in California

Posted in Business and Real Estate Litigation on November 3, 2015

A trade secret in California is any information that derives value from not being generally known.  It must also be efforts to maintain its secrecy. The information can be any knowledge and/or data.  California court have recognized: Advertising Strategy Food Recipes Beverage Recipes Marketing Information Business Strategy Customer Lists Customer Information Contractor Lists Employee Lists Supplier Lists Budgets Engineering Design Manufacturing Processes Price… READ MORE

How do I Prove I have an Oral Agreement in California?

Posted in Business and Real Estate Litigation on November 2, 2015

If your contract is not in writing, then you have to use other admissible evidence to show the court an agreement exists.  That could be: Testimony of you and the defendant Witness testimony Parties course of conduct (i.e., what they did after the alleged agreement) Documents, such as emails, letters, and faxes Financial statements Photos and video Websites Phone records Government records This list… READ MORE

Management and Profits Rights in a Partnership

Posted in Business and Real Estate Litigation on November 2, 2015

Unless you have a valid partnership agreement, all partners have equal control over the management of the business.  Their contributions to the partnership (whether they be monetary, labor, or otherwise) are irrelevant to this default management authority. Similarly, without a valid partnership agreement saying otherwise, all partners share profits – and losses – equally.  And, no partner has a right to a salary… READ MORE

Liquidated Damages in a San Diego Contract Lawsuit

Posted in Business and Real Estate Litigation on November 2, 2015

The default rule for contract damages is that the plaintiff is entitled to the harm foreseeably caused by the defendant’s breach. To avoid uncertainty, however, if litigation occurs, the parties to a contract may use a “liquidated damages” clause to determine damages in advance.  There are some limitations, however. A liquidated damages clause is generally valid, unless the defendant proves it was unreasonable under the circumstances when the… READ MORE

How to Defend a Fraud Lawsuit in San Diego

Posted in Business and Real Estate Litigation on November 2, 2015

As lawyers like to say, this is a complicated question, and depends on the facts.  There are many defenses available to businesses and people sued for fraud. First, most lawyers would examine are whether the plaintiff can ever show all the elements it needs for a successful fraud case, among others: (a) a representation; (b) that was false; (c) that the plaintiff… READ MORE

Choice-of-Law Provisions in California Contracts

Posted in Business and Real Estate Litigation on November 2, 2015

A “choice-of-law” provision is a clause in an agreement where parties agree that a certain state’s laws will govern litigation if the parties sue each other later, regardless of what state’s court hears the case. This is different from a “forum selection” clause, where the parties agree where the case must be filed. In California, the parties may agree to a choice-of-law provision if: The chosen… READ MORE

Can an LLC Member see the LLC’s Records in California?

Posted in Business and Real Estate Litigation on October 31, 2015

Yes.  LLC members in California have many rights, one of which is to request, at the company’s expense, the following records: List of the names and addresses of each member, together with their contribution and the share in profits and losses; List of the name and addresses of each manager; LLC’s federal, state, and local income tax information for last… READ MORE

Can a Shareholder see the Corporation’s Records in California?

Posted in Business and Real Estate Litigation on October 31, 2015

It depends on the type of records, the shareholder seeking them, and, possibly, on the purpose of the inspection: Inspection of the articles of incorporation and bylaws is absolute; A shareholder may inspect accounting records and minutes of the shareholder or board meetings, if it’s for a “purpose reasonably related to their interests as a shareholder”; A shareholder may inspect the corporation’s income tax returns, if they own 1% of stock; A shareholder may inspect other records,… READ MORE

How does a California Court Calculate Attorney Fee Awards?

Posted in Business and Real Estate Litigation on October 31, 2015

If a party prevails in a lawsuit and is entitled to attorney fees, the court determines that amount.  The amount is not determined by the party’s fee agreement with its lawyer. The court will look at the time the attorney spent on the case and multiply it by a reasonable hourly rate for the type of work, lawyer experience, and geographic location.  As such, whether the… READ MORE

When does a Contract Exist in California?

Posted in Business and Real Estate Litigation on October 31, 2015

It probably goes without saying that a plaintiff must actually have a contract in order to sue for breach of contract.  However, this issue is much more complex than some people imagine.  Contract existence depends on a myriad of factors, including:  Contract Conditions:  Are there any events that are required to occur in order to create the contract (i.e., a condition… READ MORE

Business Defamation Lawsuits for Online Customer Reviews

Posted in Business and Real Estate Litigation on October 31, 2015

Especially in the internet age, San Diego businesses are more considering a defamation lawsuit, especially for customer commentary online.  Visa versa, consumers are getting threatened with defamation lawsuits for online postings. Defamation is any false statement, which has a tendency to injure the business.  Generally, in order to win a defamation case, the business must show: (1) the statement was made; (2) people knew… READ MORE

Punitive Damages in Fraud Lawsuits and other Business Lawsuits

Posted in Business and Real Estate Litigation on October 31, 2015

Plaintiffs may only seek punitive damages in a tort lawsuit, such as fraud lawsuit.  Punitive damages are not recoverable in a simple breach of contract lawsuit. Moreover, recovery of punitive damages in a tort case hinges upon the plaintiff’s ability to prove by “clear and convincing” evidence that the defendant acted with “oppression, fraud or malice ” — “Malice” exists if… READ MORE

Can I Sue a Director on my Home Owners Association Board?

Posted in Business and Real Estate Litigation on October 31, 2015

Generally speaking, you cannot sue a director on your San Diego homeowners association board for negligence in performing their duties, as long as they performed their duties: In “good faith,” In a manner that he or she believed was in the best interest of the San Diego homeowners association (and its members), and With the care of a “reasonably prudent person” in “similar… READ MORE

Are there Ways Around the Statute of Limitations in California?

Posted in Business and Real Estate Litigation on October 30, 2015

Yes.  Plaintiffs should be aware of several points of law to potentially circumvent the statute of limitations defense: Verify when the Statute of Limitations Ran (and if it actually did).  First, realize the statute of limitations doesn’t start to run until all elements of a claim occur.  And, the statute of limitations periods do not begin to run until a… READ MORE

Can I Solicit My Former Employer’s Customers in California?

Posted in Business and Real Estate Litigation on October 30, 2015

Generally speaking, yes — former employees can compete and solicit a former employer’s customers.  Often, employers will try to scare former employees into thinking otherwise.  Worse, employers may threaten or bring a breach of contract lawsuit against the former employee for solicitation – often alleging the breach of a non-compete agreement. In California, generally speaking, any contract that attempts to restrain someone from… READ MORE