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How Courts Interpret Statutes: “Pay” versus “Compensation”

In general, there is a similarity in the way in which California courts interpret California statutes and the way in which courts interpret written contracts. As with contracts, the words used by our Legislators are important -- words matter.

By |2019-11-13T11:26:45-08:00November 9th, 2019|

Validity of a Copyright can be Challenged Even if the Copyright is Registered

The advantage of obtaining a Certificate of Registration is that the owner of the copyright can then file lawsuits in federal court to prevent infringement and collect damages. Indeed, the owner of a copyright cannot begin a lawsuit without receipt of the Certificate. Legally, the Certificate is presumptive evidence that the copyright is valid and of copyright ownership. However, the Certificate is only a legal presumption.

By |2019-11-13T10:56:03-08:00November 8th, 2019|

Update Your Company Policies: California Breach Notification Law Amended

Starting January 1, 2020, San Diego and California businesses will have expanded notification obligations if there has been a data breach of unencrypted personal information. Your company policies and procedures will need to be updated. If there is a breach, one key fact with respect to the amount and extent of subsequent liability will be the nature, breadth, and effectiveness of your internal privacy protection policies. There are hundreds of data breaches every year and they are expensive for companies experiencing them.

By |2019-11-13T10:40:07-08:00November 7th, 2019|

CCPA is Effective January 1, 2020: Will Retailers be Forced to Stop Using In-Store Video Tracking?

The effective date of the California Consumer Privacy Act (“CCPA”) is January 1, 2020. For businesses and stores in San Diego and California, a new era will commence with respect to their use of in-store video and other consumer tracking methods. One looming question is whether stores will have to cease in-store tracking and surveillance of their customers.

By |2019-11-08T12:16:33-08:00November 6th, 2019|

Are Your Company’s Gift Cards ADA-Compliant?

There have been many lawsuits recently filed wherein courts have required that businesses make their respective websites accessible to the blind and visually impaired. The ADA prohibits discrimination against those with disabilities with respect to "public accommodations." See 42 U.S.C. § 12181. The courts have struggled with the issue of website accessibility because websites are not physical locations.

By |2019-11-08T12:08:24-08:00November 5th, 2019|

What Happens if My San Diego Corporation Has Been Suspended/Involuntarily Dissolved?

There are several important consequences of having your corporation's existence suspended. First, legally speaking, your corporation loses its legal "rights and privileges." Among these are the ability to file and defend lawsuits, and the ability to enforce business contracts. This means that your corporation will not be able to sue a customer, for example, for non-payment of an invoice.

By |2019-11-08T11:58:53-08:00November 4th, 2019|

Buying a Business? How to Protect Yourself From Seller’s Unpaid Obligations Default

Part of the "due diligence" of a business purchase is to uncover and catalog all of the current, pending, and near-future obligations that are owed by the Seller — those obligations that were incurred while the seller was operating the business. Those obligations should be paid before or at the closing from the proceeds of the sale. Typically, ongoing obligations like rent or utilities are prorated as of the closing date.

By |2019-11-08T11:40:17-08:00November 3rd, 2019|

If I am a Single-Member San Diego LLC, do I Still Need an Operating Agreement?

The Operating Agreement is one of the "essential" business records that must be maintained by your LLC. Aside from the fact that an Operating Agreement is required, it is essential for a single-member LLC to have an Operating Agreement and to abide by the Agreement strictly. Indeed, it is often more important for a single-member LLC to have an Operating Agreement than for a multi-member LLC.

By |2019-11-08T10:48:34-08:00November 2nd, 2019|

Terminating a Contract for Convenience

In general, all contracts can be terminated. If the contract is silent as to the "how’s and when’s" of contract termination, then the risk of litigation over termination is enhanced. However, termination provisions can largely eliminate this risk in many situations. The key is to differentiate and specify "for cause" and "for convenience" termination.

By |2019-11-06T12:46:05-08:00November 1st, 2019|

Are Your Mobile Apps ADA Compliant?

San Diego and California businesses that operate websites have been confronted with an increasing number of lawsuits concerning website accessibility under the federal Americans with Disabilities Act (“ADA”) and the California Unruh Act. What has been "evolving law" over the last several years has become "settled law." Essentially, businesses must make their websites accessible to the visually impaired if those websites facilitate access to physical locations. The same legal rules will likely apply to any mobile apps operated/owned by your business.

By |2019-10-30T10:25:39-07:00October 31st, 2019|

What is Contributory Trademark Infringement?

Since the Inwood case, the federal courts have concluded that contributory trademark infringement has two legal elements that must be proven with the second prong having several options. The first element is that some person or entity must commit direct trademark infringement. The second prong that must be proven -- the contributory part of the case -- can be proven one of three ways...

By |2019-10-30T10:06:34-07:00October 30th, 2019|

Common Questions About Incorporating Your Business

Many startup entrepreneurs begin their businesses as a sole proprietorship. That is the easiest and quickest way to begin working as "your own boss." Without question, being a sole proprietor is effective -- for at least a short while. After a time and after your business is succeeding and making money, however, this is often time to incorporate your business.

By |2019-10-30T09:52:23-07:00October 29th, 2019|

California Bans “No Rehire” Clauses in Settlement Agreements

A no rehire provision prohibits a person who has signed a settlement agreement from being hired again by the employer. Sometimes a no rehire provision will be time-limited; but often the clause has no end date meaning a permanent ban from being hired by that employer. However, under this new law -- Assembly Bill 749 -- such clauses are now invalid in settlement agreements.

By |2019-10-30T09:46:03-07:00October 28th, 2019|

Web Accessibility: SCOTUS Denies Writ of Certiorari for Robles Case

With respect to website accessibility, the recent decision of the US Ninth Circuit in Domino’s Pizza, LLC v. Robles, 913 F.3d 898 (US 9th Cir. 2019) requires that any business' website must be accessible to the visually impaired if the website is used in connection with a physical location. This ruling is based on the court's interpretation of the federal Americans With Disabilities Act ("ADA") which requires that all places of "public accommodation" be accessible to those with disabilities.

By |2019-10-25T10:04:38-07:00October 27th, 2019|

State Assembly Bans Employment-Related Mandatory Arbitration and Criminalizes Any Attempts

Once again, California has defied the US Supreme Court and has banned employment-related mandatory arbitration. Further, the new act, Assembly Bill 51 ("AB 51"), makes it a misdemeanor crime for an employer to attempt to get employees to sign a mandatory arbitration agreement that is banned by AB 51. AB 51 makes it unlawful for employers to require employees to sign mandatory arbitration agreements as a condition of being employed or continuing their employment. Retaliation for refusing to sign an arbitration agreement is also prohibited.

By |2019-10-25T09:59:05-07:00October 26th, 2019|

Joint-Employer Doctrine: Pre-Dynamex Control Test Still the Proper Test

Prior to Dynamex, the main test for determining the proper worker classification was the "control test." This control test examined various facts related to how much control an employer exercised over the worker. The more control, the more likely the worker should be/should have been classified as an "employee." The Dynamex case overturned the control test and held that the new test would be called the ABC test. The ABC test retains much of the control test as part "A" and adds two additional tests. An employer must satisfy all three tests for a worker to be properly and legally classified as an "independent contractor."

By |2019-10-23T11:42:07-07:00October 25th, 2019|

Proposed CCPA Regulations are Published Creating a Litigation Mine-Field

The California Attorney General’s Office finally released proposed regulations to govern how the California Consumer Privacy Act ("CCPA") will be implemented. These proposed regulations will guide how the Attorney General's Office regulates businesses under the CCPA and will be cited extensively by California and federal courts when confronted with legal challenges related to the CCPA. As expected, the proposed regulations offer a lot of extra details, but provide little concrete guidance for businesses that are attempting to comply.

By |2019-10-23T11:35:40-07:00October 24th, 2019|