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Can an Audiologist Practice Audiology Using a California LLC?

Can an Audiologist Practice Audiology Using a California LLC? A common question the attorneys at San Diego Corporate Law are asked is whether or not an audiologist may practice audiology as a California Limited Liability Company (LLC). Whether you are an audiologist, or someone advising healthcare professionals and other [...]

By |2023-11-14T14:23:43-08:00October 16th, 2023|

Can You Start an LLC or S-Corp in Another State?

Can You Start an LLC or S-Corp in Another State? Yes, it is indeed possible for a resident of California to establish an LLC or S-Corp in another state. However, there are certain considerations and potential complications that must be understood to make an informed decision. This article will [...]

By |2023-11-14T14:37:53-08:00October 13th, 2023|

Who May Be a Shareholder of a California Professional Speech-Language Pathology Corporation?

Who May Be a Shareholder of a California Professional Speech-Language Pathology Corporation? It is essential to understand who can be a shareholder of a California Professional Speech-Language Pathology Corporation because California Speech-Language Pathology Corporations are subjected to stringent regulations enforced by the California Department of Consumer Affairs, Speech-Language Pathology [...]

By |2023-11-14T14:38:48-08:00October 13th, 2023|

What is a California S-Corp?

What is a California S-Corp? A California S-Corp is a special type of corporation that combines the limited liability benefits of a traditional corporation with the income tax advantages of a partnership or sole proprietorship without the same self-employment tax liabilities of partnerships or sole proprietorships. Despite carrying certain [...]

By |2023-11-14T14:43:29-08:00October 12th, 2023|

Can a Speech Therapist Practice Speech-Language Pathology Using a California LLC?

Can a Speech Therapist Practice Speech-Language Pathology Using a California LLC? A common question the attorneys at San Diego Corporate Law are asked is whether or not a speech therapist may practice speech-language pathology as a California Limited Liability Company (LLC). Whether you are a speech therapist, or someone [...]

By |2023-11-14T14:43:56-08:00October 12th, 2023|

Evaluating California Entity Choices

Evaluating California Entity Choices When it comes to launching a new business in California, choosing the right legal entity is a critical decision. Each entity - be it a Sole Proprietorship, General Partnership, Corporation, S-Corp, Limited Liability Company (LLC), or Limited Partnership - carries its own set of advantages [...]

By |2023-11-14T14:45:58-08:00October 11th, 2023|

Who May Be a Shareholder of a California Professional Psychological Corporation?

Who May Be a Shareholder of a California Professional Psychological Corporation? It is essential to understand who can be a shareholder of a California Professional Psychological Corporation because California Psychological Corporations are subjected to stringent regulations enforced by the California Department of Consumer Affairs, California Board of Psychology. This [...]

By |2023-11-14T14:48:41-08:00October 11th, 2023|

Understanding the California Limited Partnership

Understanding the California Limited Partnership A California Limited Partnership is a specific type of business structure that combines elements of both partnerships and corporations. This unique blend can offer a significant level of protection to partners, along with an efficient tax structure that can be beneficial for many businesses. [...]

By |2023-11-14T14:49:24-08:00October 10th, 2023|

Can a Psychologist Practice Psychology Using a California LLC?

Can a Psychologist Practice Psychology Using a California LLC? A common question the attorneys at San Diego Corporate Law are asked is whether or not a psychologist may practice psychology as a California Limited Liability Company (LLC). Whether you are a psychologist, or someone advising psychological professionals and other [...]

By |2023-11-14T14:54:25-08:00October 10th, 2023|

What is a California Limited Partnership

What is a California Limited Partnership? A California Limited Partnership ("California LP") is a business entity that is particularly beneficial for businesses with a clear division between passive investors and active managers. In this article, we will stick to the basics, but if you want to delve into the [...]

By |2023-11-14T14:55:21-08:00October 9th, 2023|

Who May Be a Shareholder of a California Professional Podiatric Medical Corporation?

Who May Be a Shareholder of a California Professional Podiatric Medical Corporation? It is essential to understand who can be a shareholder of a California Professional Podiatric Medical Corporation because California Podiatric Medical Corporations are subjected to stringent regulations enforced by the California Department of Consumer Affairs, Podiatric Medical [...]

By |2023-11-14T14:57:03-08:00October 9th, 2023|

Can a Podiatrist Practice Podiatric Medicine Using a California LLC?

Can a Podiatrist Practice Podiatric Medicine Using a California LLC? A common question the attorneys at San Diego Corporate Law are asked is whether or not a podiatrist may practice podiatric medicine as a California Limited Liability Company (LLC). Whether you are a podiatrist, or someone advising podiatry professionals [...]

By |2023-11-14T15:00:52-08:00October 6th, 2023|

Who May Be a Shareholder of a California Professional Physician Assistant Corporation?

Who May Be a Shareholder of a California Professional Physician Assistant Corporation? It is essential to understand who can be a shareholder of a California Professional Physician Assistant Corporation because California Physician Assistant Corporations are subjected to stringent regulations enforced by the California Department of Consumer Affairs, Physician Assistant [...]

By |2023-11-14T15:06:37-08:00October 5th, 2023|

Can a Physician Assistant Practice Medicine Using a California LLC?

Can a Physician Assistant Practice Medicine Using a California LLC? A common question the attorneys at San Diego Corporate Law are asked is whether or not a physician assistant may practice medicine as a California Limited Liability Company (LLC). Whether you are a physician assistant, or someone advising physician [...]

By |2023-11-14T15:07:04-08:00October 4th, 2023|

Who May Be a Shareholder of a California Professional Medical Corporation?

Who May Be a Shareholder of a California Professional Medical Corporation? It is essential to understand who can be a shareholder of a California Professional Medical Corporation because California Medical Corporations are subjected to stringent regulations enforced by the Medical Board of California. This article will delve into the [...]

By |2023-11-14T15:09:05-08:00October 3rd, 2023|

Can a Physician Practice Medicine Using a California LLC?

Can a Physician Practice Medicine Using a California LLC? A common question the attorneys at San Diego Corporate Law are asked is whether or not a medical doctor may practice medicine as a California Limited Liability Company (LLC). Whether you are a medical doctor, or someone advising medical professionals [...]

By |2023-11-14T15:08:59-08:00September 29th, 2023|

California LLC Fee

California LLC Fee California LLC Overview A California limited liability company (LLC) is a specific form of a private limited company. California LLCs are more flexible and require less record-keeping and reporting than other choices of entities, such as corporations, S-Corps, and limited partnerships. However, the California LLC Fee [...]

By |2023-11-14T15:16:36-08:00September 20th, 2023|

Privacy Act Deadline Nears: Record Keeping Required

Privacy Act Deadline Nears: Record Keeping Required The effective date of the California Consumer Privacy Act ("CCPA") is nearing. See Cal. Civ. Code, §1798.100 et seq. Among the many legal requirements imposed by the CCPA, such as a toll-free telephone number for customers to use, the CCPA requires record [...]

By |2023-11-14T15:42:10-08:00November 30th, 2019|

Corporate Governance: What is the Corporate Opportunity Doctrine?

Corporate Governance: What is the Corporate Opportunity Doctrine? In general, the officers and directors of a San Diego corporation owe various duties to the corporation (and to the corporation's shareholders -- its owners). Among the duties are to always act in the best interest of the corporation and take [...]

By |2023-11-14T15:39:49-08:00November 27th, 2019|

Will California Start Requiring That Employers Police Worker Meal Breaks?

Will California Start Requiring That Employers Police Worker Meal Breaks? An Oregon Court of Appeals recently issued a decision that held that Oregon employers were required to police worker meal breaks. Under the applicable Oregon law and Wage Orders, workers are entitled to an uninterrupted 30-minute meal break for [...]

By |2023-11-14T15:43:38-08:00November 26th, 2019|

Can Fox Media Trademark the Phrase “Ok, Boomer”?

Can Fox Media Trademark the Phrase "Ok, Boomer"? Fox Media has made a splash in the news by filing an intent-to-use application for a trademark for the phrase "OK, Boomer." For those who have not heard, the "Ok, Boomer" is a retort used by teens and young adults to [...]

By |2023-11-15T11:44:00-08:00November 25th, 2019|

In Unusual Case, Ninth Circuit Orders Vacatur of Arbitration Award on Grounds of Partiality

In Unusual Case, Ninth Circuit Orders Vacatur of Arbitration Award on Grounds of Partiality In general, arbitration verdicts and awards are final. This is one of the main advantages of submitting disputes to arbitration. In traditional court proceedings, there can be at least two layers of appeal that drag [...]

By |2023-11-15T11:45:10-08:00November 24th, 2019|

FTC Begins Requiring “Data Minimization”: Is Your San Diego Business Complying?

FTC Begins Requiring "Data Minimization": Is Your San Diego Business Complying? Data security and consumer privacy have been "hot" legal topics for several years. A newly emerging trend in both areas is the idea of "data minimization." As currently defined, data minimization is the idea that a business should [...]

By |2023-11-15T11:46:45-08:00November 23rd, 2019|

New Guidelines for Social Media “Influencers”

New Guidelines for Social Media "Influencers" Many San Diego businesses are using social media "influencers." This has been an emerging trend in personalized marketing for several years now. Social media influencers use and wear various products from various manufacturers -- usually of luxury goods. Social media influencers are often [...]

By |2023-11-15T11:47:46-08:00November 22nd, 2019|

Recovering Attorney Fees in San Diego Contract Disputes: Even a Dollar is Enough Says Court

Recovering Attorney Fees in San Diego Contract Disputes: Even a Dollar is Enough Says Court If there is litigation over a breach of contract, many well-crafted San Diego business contracts have fee shifting provisions whereby one party or the other can ask the court to award attorneys' fees. These [...]

By |2023-11-15T11:54:20-08:00November 21st, 2019|

Proving Copyright Infringement: Facts are Not Copyrightable, Says Federal Judge

Proving Copyright Infringement: Facts are Not Copyrightable, Says Federal Judge The producers of the popular Netflix show “Narcos” were vindicated in a recent trial over alleged copyright infringement. U.S. District Judge Rodney Smith ruled that Netflix and the producers did not use copyrighted material from a book written by [...]

By |2023-11-15T11:55:21-08:00November 20th, 2019|

Will California Follow New Jersey and Fine Uber For Misclassifying Workers?

Will California Follow New Jersey and Fine Uber For Misclassifying Workers? It has been recently reported that the State of New Jersey is fining Uber for unpaid employment taxes and for misclassifying its workers. New Jersey was the first state to adopt the so-called ABC test for whether a [...]

By |2023-11-15T12:01:14-08:00November 19th, 2019|

Asset Purchases: Still a Danger of Successor Liability for Employee Wage/Benefit Payments

Asset Purchases: Still a Danger of Successor Liability for Employee Wage/Benefit Payments If you are thinking of buying a San Diego business, one key legal consideration is whether to structure the deal as an asset purchase or as a stock purchase. The financial issue is avoiding application of the [...]

By |2023-11-09T18:44:51-08:00November 18th, 2019|

Eight Days Late May be “Okay” Despite “Time is of the Essence” Clause in Contract

Eight Days Late May be "Okay" Despite "Time is of the Essence" Clause in Contract In general, California courts will enforce business contracts as written. Indeed, generally, the courts will enforce all provisions even if the provisions work some sort of disadvantage or hardship on one party or another. [...]

By |2023-11-15T12:02:04-08:00November 17th, 2019|

Key Differences Between General Partnerships, Corporations, and Limited Liability Companies

Key Differences Between General Partnerships, Corporations, and Limited Liability Companies When you start your own San Diego small business, you have several types of corporate entities through which to operate. In this article, we discuss the key differences between three commonly used entities: general partnerships, standard corporations, and limited [...]

By |2023-11-15T12:06:42-08:00November 16th, 2019|

California Consumer Privacy Act: Can We Share Data with an Affiliated Business Without Disclosure

California Consumer Privacy Act: Can We Share Data with an Affiliated Business Without Disclosure The California Consumer Privacy Act ("CCPA") is going into effect on January 1, 2020. Among the many open legal questions is whether data can be shared with an affiliated business without the need for disclosure/consent [...]

By |2023-11-15T12:08:00-08:00November 15th, 2019|

Uber, Lyft, and Other Companies Back Ballot Initiative to Exempt Gig Drivers From ABC Test

Uber, Lyft, and Other Companies Back Ballot Initiative to Exempt Gig Drivers From ABC Test California recently amended its Labor Code to protect so-called gig economy workers and mandated that those workers be classified as "employees" as opposed to "independent contractors." See Cal. Lab. Code, §2750.3. This new law [...]

By |2023-11-15T12:15:06-08:00November 14th, 2019|

San Diego Business Contract Drafting: Even Apostrophes Matter

San Diego Business Contract Drafting: Even Apostrophes Matter An interesting decision involving a construction contract was recently issued by the Second District California Court of Appeals. See Regency Midland Construction, Inc. v. Legendary Structures, Inc., Case No. B292602 (Cal. App. 2nd Dist. November 7, 2019). The result of the [...]

By |2023-11-15T12:15:58-08:00November 13th, 2019|

What Professions are Exempt Under the Newly Codified “ABC Test” for Independent Contractors?

What Professions are Exempt Under the Newly Codified “ABC Test” for Independent Contractors? As has been widely reported and discussed, the California State Assembly passed Assembly Bill 5, and Governor Newsom signed, which codified the California Supreme Court's ABC Test for when a worker is to be considered an [...]

By |2023-11-15T12:17:12-08:00November 12th, 2019|

Reasons to Form a California Social Benefit Corporation

Reasons to Form a California Social Benefit Corporation If you are starting a San Diego-based business, you have many options for what type of corporate entity that you can form. The most common choices are a standard corporation and a limited liability company. These are generally used when the [...]

By |2023-11-15T12:18:14-08:00November 11th, 2019|

Tips for Drafting an Excellent Company Data Breach Protection Policy

Tips for Drafting an Excellent Company Data Breach Protection Policy With the recent passage and signing by Governor Newsom of Assembly Bill 1130 ("AB 1130") which expands the definition of "personal information" to encompass all types of data that might be used to personally identify customers, patients or clients, [...]

By |2023-11-15T12:19:27-08:00November 10th, 2019|

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 |2023-11-15T12:20:24-08:00November 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 |2023-11-15T12:21:17-08:00November 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 |2023-11-15T12:22:11-08:00November 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 |2023-11-15T12:22:57-08:00November 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 |2023-11-15T12:24:22-08:00November 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 |2023-11-15T12:26:50-08:00November 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 |2023-11-15T12:27:49-08:00November 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 |2023-11-15T12:29:42-08:00November 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 |2023-11-15T12:30:41-08:00November 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 |2023-11-15T12:33:52-08:00October 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 |2023-11-15T12:34:32-08:00October 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 |2023-11-15T12:40:12-08:00October 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 |2023-11-15T12:50:28-08:00October 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 |2023-11-15T12:51:21-08:00October 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 |2023-11-15T12:52:05-08:00October 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 |2023-11-15T12:52:51-08:00October 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 |2023-11-15T12:53:36-08:00October 24th, 2019|

Is Employee Time “Rounding” Allowed in San Diego?

In simple terms, "yes," employee clock-in-clock-out time rounding is allowed under California law as long as the rounding is "neutral" in its application and does not benefit the employer substantially more than it benefits the workers. This is the holding of a recent California Court of Appeals decision.

By |2023-11-15T12:54:19-08:00October 23rd, 2019|

To Give Your Trade Secrets Maximum Protection, Make Sure Compliance-With-Government-Request Notice is in Your Contracts

Trade secrets are protected under both California and federal law. The federal law is called the Defend Trade Secrets Act ("DTSA") and was passed in 2016. It is similar to many state statutes and provides a federal law which can be used to file lawsuits if employees or former employees steal or threaten to steal your business' trade secrets. However, there is a compliance-with-government-request protection provision in the DTSA which requires that certain notices be given.

By |2023-11-15T12:55:26-08:00October 22nd, 2019|

Employee Discrimination Claims Now Have Three-Year Deadline

Before filing a lawsuit concerning employment-related claims of discrimination or harassment (such as sexual harassment), an aggrieved employee first must make a filing with the California Department of Fair Employment and Housing ("DFEH"). The DFEH is the administrative body tasked with overseeing employment discrimination under the California Fair Employment and Housing Act ("FEHA").

By |2023-11-15T12:57:01-08:00October 21st, 2019|

More Legal Insights on the Joint Employer Doctrine and California Franchises

Under California law, there are three methods of attempting to prove the joint employer doctrine. If proven, then both, or either, employer may be held liable for any violation of federal or California labor laws. This might include failure to pay overtime or minimum wages or failure to give proper rest breaks, etc. The three methods of proving the joint employer doctrine are:

By |2023-11-15T12:57:42-08:00October 20th, 2019|

Product Labeling News: Nestle’s Non-GMO Self-Certificate Possibly Misleading

A recent decision by a federal judge here in California has allowed a class action case against Nestle to go forward based on an allegedly misleading non-GMO label. Two aspects of the package labeling were deemed potentially problematic. First, the labeling indicated that there were no GMO ingredients even though there were potentially GMOs in the ingredient chain upstream from the final ingredient.

By |2023-11-15T12:58:21-08:00October 19th, 2019|

San Diego Business Contracts: Are “Orphan” Signature Pages Okay to Use?

In general, here in California, it is "okay" to use so-called "orphan" signature pages for business contracts as long as the parties have in fact agreed to the contract and all of its essential terms. An orphan signature page refers to a separate final page of a contract, where various signature lines are located, which is circulated for original signatures without the whole contract being attached. This one page is signed by the relevant parties and is eventually reunited with the remainder of the whole contract.

By |2023-11-15T12:59:03-08:00October 18th, 2019|

San Diego Job Descriptions: Are Your Employees Management or Non-Management?

Many employers skimp on their job descriptions (or generally avoid doing them). However, this is a mistake, particularly given the heightened protection that California law is providing for workers here in the Golden State. A good and accurate job description is necessary for all of the following legal issues:

By |2023-11-15T12:59:52-08:00October 17th, 2019|

Forming Your San Diego Professional Accountancy Corporation

A California professional accountancy corporation provides a shield for your personal assets that is not available when operating as a sole proprietorship. An experienced San Diego corporate attorney can help you set up your California professional accountancy corporation correctly and can give advice and counsel on the other legal necessities such as who can be elected to the board of directors. Here is some general information on the requirements.

By |2023-11-15T18:25:33-08:00October 16th, 2019|

What is a Contract?

At the very basic level, "contracts are promises that the law will enforce." This is the definition provided by WexDictionary run by the Cornell University Legal Information Institute. Legally speaking, here in California and elsewhere, contracts are important precisely because they create legally enforceable obligations.

By |2023-11-15T18:19:25-08:00October 15th, 2019|

Can My San Diego LLC Issue “Stock Options” to Employees?

It is possible for LLCs to provide a form of option ownership plan to employees if the LLC is treated as a corporation for tax purposes, issues ownership in form of units with equal voting and liquidation rights, the units in the plan have the highest voting and dividend rights provided by that LLC, the LLC issues dividends and allocates profits and loss pro rata. However, most LLCs are taxed as partnerships and many do not conform to the other requirements listed here.

By |2023-11-15T18:20:58-08:00October 14th, 2019|

Legal Considerations When Launching Your San Diego Startup

So, you are finally ready to launch your new San Diego startup business. Congratulations! Starting your own business is exciting and nerve-racking at the same time. Here are a few of the most important legal considerations for any business when they are first starting out:

By |2023-11-15T18:30:13-08:00October 13th, 2019|

Codifying Dynamex: Impact on Mergers and Acquisitions

The new test was adopted by the California Supreme Court in 2018 in Dynamex Operations West v. Superior Court, 4 Cal.5th 903 (Cal. Supreme Court 2018). The new law makes it difficult to classify workers as independent contractors. The law goes into effect on January 1, 2020, and will be retroactive. That means that workers who have been misclassified can seek recovery of unpaid minimum wages or overtime or penalties for untaken meal breaks for the previous three to four years.

By |2023-11-15T18:31:05-08:00October 12th, 2019|

How to Avoid Procedural Unconscionability in Your Contracts: Lessons From OTO v. Kho

As we recently discussed here, the California Supreme Court issued its opinion in OTO, LLC v. Kho, Case No. S244630 (Cal. Supreme Court August 29, 2019), which invalidated an arbitration provision in an employment contract. The case is remarkable in many respects and likely will be an important legal precedent going forward.

By |2023-11-15T18:32:03-08:00October 11th, 2019|

Drafting “Efforts” Clauses: Is There a Hierarchy of Efforts?

San Diego business contracts sometimes contain what are generally called "efforts clauses." Often, these clauses are connected to some approval or resource that one party to the contract must obtain and generally refer to some activity or event that is to occur after the contract is signed. For example, a typical "efforts" clause might be something like this: "Party A will use its best efforts to obtain permitting approval from CITY."

By |2023-11-15T18:32:44-08:00October 10th, 2019|

FAQs About Forming a California Professional Physician Assistants Corporation

Licensed physician assistants here in San Diego and the rest of California can form California professional physician assistants corporations through which to operate their practices. Physician assistants cannot form regular corporations or limited liability companies or any other form of corporate entity. If you are ready to form your professional physician assistants corporation, an experienced San Diego corporate attorney can provide advice and assistance.

By |2023-11-15T18:35:10-08:00October 9th, 2019|

What is an Incontestable Trademark?

Trademarks and service marks are extremely valuable, and many businesses spend substantial sums of money creating and maintaining trademarks. These are the marks that create the "brand" and help generate consumer loyalty. That loyalty can drive market share and prevent a competitor from becoming profitable. Registering a trademark allows the owner to file a lawsuit in federal court to prevent infringement of the trademark.

By |2023-11-15T18:36:22-08:00October 8th, 2019|

Uber’s Legal Team Says it Will Try and Beat the ABC Test and Not Classify its Drivers as “Employees”

The California State Assembly recently passed AB 5 which imposed the so-called ABC test on California employers with respect to how "employees" and "independent contractors" are classified. The author of AB 5 was San Diego Assemblywoman Lorena Gonzalez (San Diego, D). Gonzalez touted the law as an effort to bring fairness to workers in California. AB 5 was aimed at giving "gig" workers the benefits and protections that are afforded to more traditional workers under California's labor laws. Companies like Uber, Grubhub, and Lyft were among the targets of the legislation.

By |2023-11-15T18:37:01-08:00October 7th, 2019|

No Arbitration for Samsung Class Actions: Booklet “Inaptly Titled” and Arbitration Provisions Not Conspicuous

On September 17, 2019, Samsung Electronics received a double-helping of bad news with respect to efforts to force arbitration of consumer class actions related to the Galaxy smartphone. In the first case, the plaintiff filed a class action suit stemming from severe burns allegedly caused by his Samsung phone. See Samsung Electronics America, Inc. v. Ramirez, Case No. 18-16094 (US 9th Cir. September 17, 2019). In the second case, the plaintiff filed a class action alleging false advertising with respect to the marketing of Samsung's phones.

By |2023-11-15T18:37:40-08:00October 6th, 2019|

Recovering Attorney Fees in San Diego Contract Disputes: Who is the “Prevailing Party?”

Many San Diego businesses want to protect themselves in the event of litigation with respect to business contracts. Often business contracts contain an attorney fees clause whereby the losing party in the litigation is forced to pay the attorney’s fees and litigation costs of the other party. Under most cases, absent a statute or a contractual provision, if there is litigation, each party must pay its own litigation costs including attorney’s fees. But, by contract, you can require the other party to pay. These are often called "fee-shifting provisions."

By |2023-11-15T18:38:45-08:00October 5th, 2019|

In Adjusting to the Codification of Dynamex, be Cautious of the Joint Employer Doctrine

Some San Diego employers with workers currently classified as "independent contractors" will likely have to re-classify those workers. One solution that is available is to turn to staffing agencies and contract with such companies to achieve the same flexibility that is obtained by having independent contractors. Essentially, the staffing agency is the employer and will be responsible for providing the employees with various benefits that are mandated by the California Labor Code.

By |2023-11-15T18:39:40-08:00October 4th, 2019|

Is Your San Diego Business a “Data Broker” and Will You Need to Register?

AB 1202 requires any business that collects and "sells" consumer personal data and information must register themselves as "data brokers" with the California Attorney General. Filing a form is required along with a registration fee and the information must be updated annually. The new statute defines a “data broker” as “a business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship.”

By |2023-11-15T18:43:20-08:00October 2nd, 2019|

Corporate Entities are Legally Separate and Distinct From Their Owners

The main reason for using a corporate entity -- like a corporation or a limited liability company or a California professional corporation -- is to obtain the shield provided by the corporation that protects your personal and family financial assets. If the corporate entity undertakes a business obligation, then the business creditors can only seize business assets if there is a judgment; your personal and family assets are protected.

By |2023-11-15T18:46:22-08:00October 1st, 2019|

Can I Fire an Employee Who Takes a Vacation While on Medical Leave?

As with most employment-related questions, the answer is not a clear "yes" or "no." According to a recent decision by the US District Court in the Central District of California, an employee of Union Pacific was properly terminated when his fishing trip vacation photos were posted on Facebook and when the employee -- at first -- was less than honest about being on a fishing trip.

By |2023-11-15T18:49:06-08:00September 30th, 2019|

For Now, Employee Data is Excluded From the California Consumer Privacy Act

In general, the CCPA applies to any sort of data -- including biometric data -- that is collected by a business about its customers. However, the definition of "customer" or "consumer" is very broad and is not limited to those who may be purchasing goods or services. Thus, many have concluded that employee data and the data collected from employees and about job applicants would be covered by the CCPA. California lawmakers seem to agree and, thus, for the next year at least, employee data was removed from coverage of the CCPA.

By |2023-11-15T18:53:22-08:00September 29th, 2019|

Will California Follow Oregon and Hold That a Negative Employment Reference can be Unlawful Retaliation?

In a recent decision, the Oregon Supreme Court held that providing an employee with a negative employment reference can be considered unlawful "retaliation" under Oregon law. See McLaughlin v. Wilson, 365 Or 535 (Or. Supreme Court September 12, 2019). Oregon and California lawmakers tend to take notice of new laws made in each respective state. One wonders if this new legal precedent might soon be followed here in the Golden State.

By |2023-11-15T18:54:04-08:00September 28th, 2019|

California Again Takes Aim at Banning Mandatory Arbitration in Employment Agreements

As with its previous version, AB 51 bans employers from requiring that employees agree to arbitration as a condition of employment. Further, the new law criminalizes any effort to make workers or applicants waive rights to bring litigation or suit for alleged violations of the California Fair Employment and Housing Act (“FEHA”). The FEHA is the main California anti-discrimination statute.

By |2023-11-15T18:54:50-08:00September 27th, 2019|

AB5 Passes State Assembly Redefining “Employee” and “Independent Contractor”

AB 5 codifies, with many important exceptions, the California Supreme Court's Dynamex decision from April 2018. See text of AB 5 here. The Dynamex decision imposed on California businesses a new test for when workers can be classified as independent contractors. The new test is called the ABC test. To properly classify a worker as an "independent contractor," all three parts of the test must be satisfied. AB 5 makes the ABC test part of California's statutory law which effectively prevents Dynamex from being overturned.

By |2023-11-16T15:26:45-08:00September 26th, 2019|

Starting a Professional Naturopathic Doctor Corporation Here in San Diego

When engaged in naturopathic medicine, using a corporate entity has the main advantage of protecting your personal and family financial assets from being taken by creditors, including malpractice judgment creditors. There are other advantages such as ease of transfer/sale of your practice, the ability to establish a business credit rating, and higher rates of approval for business loans and credit

By |2023-11-16T15:29:21-08:00September 25th, 2019|

Are E-Signatures Okay to Use?

Under basic and general rules of contract formation, e-signatures are a valid method of consenting or assenting to a contract. Indeed, one is not required to sign electronically. I "click" on a box on a website that says "I agree" is sufficient for courts to find that a contract has been formed. Thus, the use of a signature block or an image of your signature is sufficient for you to be bound to contract terms.

By |2023-11-16T15:30:50-08:00September 24th, 2019|

Website Accessibility Update: You can be Held Liable for a Third-Party’s Lack of Accessibility

The Thurston v. Midvale Corporation case is the strongest case to date mandating the legal requirement that business websites be accessible. The Thurston case held that a restaurant's website violated the federal Americans With Disabilities Act ("ADA") and also the California Unruh Act. Of note and of legal importance, the restaurant at issue was held to be liable even though the reservation service was actually handled through a third-party webservice.

By |2023-11-16T15:31:40-08:00September 23rd, 2019|

Agreeing to Form a Partnership is Not a Partnership Agreement: Illinois Case Example

. Under California law, a partnership is formed when two or more persons or business agree to start a business and to share profits (and losses). This is true whether or not the parties involved draft up a written partnership agreement. Oral partnerships can be valid in California as can partnerships-via-conduct. Partnership is entirely a creature of contract and agreement. Thus, there can arise the problem of agreeing-to-agree and whether that amounts to a partnership.

By |2023-11-16T15:34:06-08:00September 22nd, 2019|

Beating the Dynamex ABC Test for an “Independent Contractor”

A recent case decided by the New Jersey appellate court demonstrates some of the parameters of a successful classification of a worker as an "independent contractor." See Law Office of Gerard C. Vince, LLC v. Board of Review, Case No. No. A-5441-17T2 (N.J. App. September 3, 2019) (non-precedential). The worker at issue was retained under a written consulting contract to provide paralegal work as an independent contractor. When the contract was terminated, she filed for unemployment benefits claiming that she was really an "employee." At the trial level, the employer lost.

By |2023-11-16T15:35:38-08:00September 21st, 2019|

Four Things to Know About Starting Your Physical Therapy California Professional Corporation

Under California law, you cannot operate your physical therapy practice as any type of corporation other than a California professional physical therapy corporation. That is, you cannot use a standard c-corporation or a limited liability company. California professional corporations were created in 1968 via the enactment of the Moscone-Knox Professional Corporation Act (the “Moscone-Knox Act” or the "Act").

By |2023-11-16T15:39:01-08:00September 20th, 2019|

Federal Labor Board Says Misclassifying Workers Without More is Not an Unfair Labor Practice

Over the last few years, some NLRB administrative judges and courts have held that it is an unfair labor practice to misclassify a worker as an independent contractor when the worker should have been classified as an "employee." The decisions did not look to the intent of the employer or to whether the classification was justified under then-current interpretations of the law. Put another way, an employer who misclassified a worker by mistake was still considered to have engaged in an unfair labor practice.

By |2023-11-16T15:39:42-08:00September 19th, 2019|

San Diego Acupuncturists: Setting Up Your Acupuncture Professional Corporation

If you are an acupuncturist, San Diego Corporate Law may assist in determining if you should operate your acupuncture practice through a California Professional Acupuncture Corporation. California professional corporations are provided for pursuant to the provisions of the Moscone-Knox Professional Corporation Act (the “Moscone-Knox Act” or the "Act") originally passed in 1968.

By |2023-11-16T15:42:07-08:00September 18th, 2019|

San Diego Entrepreneurs: Summary of Steps for Registering Your Trademark

Registering a trademark, or service mark, is an important part of any marketing strategy of any San Diego business. Trademarks identify your business as the unique commercial source for a product or service and the mark helps retain customer loyalty. Registration of your mark is crucial to protect your marks from being taken by competitors. The process is complex and you should retain an experienced San Diego corporate attorney for advice and counsel leading up to your attempted registration. Here is a quick summary of the process.

By |2023-11-16T15:43:22-08:00September 17th, 2019|

Update on Emotional Support Animals: Dept of Transportation Okays Miniature Ponies on Planes

Under the federal Americans With Disabilities Act ("ADA"), reasonable accommodations are required for any employee “disability." The term "disability" has been interpreted by the courts to cover emotional disabilities. A recent trend in treating mental health disorders is the use of emotional support animals. Increasingly, it seems that allowing an employee to keep an emotional support animal at work is being defined as a "reasonable accommodation" under the ADA.

By |2023-11-16T15:44:34-08:00September 16th, 2019|

Anabi Oil Case: Word “Breach” vs. “Termination” in Contract Difference Between Win and Loss

A recent case called Anabi Oil Corporation v. Highland Park Oil, Inc., Case No. B283511 (Cal. App. 2nd Dist. August 15, 2019) provides a good example of how words matter when courts evaluate and interpret the contract. In that case, the notable words were "terminate" as opposed to "breach."

By |2023-11-16T15:45:22-08:00September 15th, 2019|

Who can be a Shareholder in a San Diego Dental Hygienist Professional Corporation?

Registered dental hygienists in alternative practice cannot form a standard corporation or a limited liability company through which to operate their practice. Only professional corporations are allowed. This is mandated by the Moscone-Knox Professional Corporation Act (the “Moscone-Knox Act” or the "Act") which was passed by the California State Assembly in 1968.

By |2023-11-16T15:48:04-08:00September 14th, 2019|

California Wineries Denied Effort to Trademark “BIG SIX” for Wine Products

In general, trade and service marks must be unique and distinctive enough to identify the commercial source of the goods or services. Descriptive words generally do not function in that manner. In the mind of the consumer, the descriptive words are just that — descriptive words. Likewise, generic words do not function in the minds of the consumer as the identity of the maker/provider of the goods or services.

By |2023-11-16T15:48:56-08:00September 13th, 2019|

Some Reasons for Caution When Considering Clauses that Mandate Pre-Litigation Mediation

Most mandatory pre-litigation mediation clauses require some sort of negotiation and mediation within a certain number of days before litigation or arbitration can be filed. In this manner, the effort to negotiate and mediate becomes a precondition -- almost jurisdictional -- to a party's ability to file a lawsuit.

By |2023-11-24T10:53:04-08:00September 12th, 2019|

California Supreme Court Again Prohibits Arbitration of Employee Wage Disputes

In general, the Federal Arbitration Act protects and encourages arbitration and preempts state laws. The California Supreme Court was forced to dial back Sonic-Calabasas and, instead, ruled that mandatory arbitration was not always unconscionable. If the arbitration provided sufficient procedural safeguards and was equivalent to the kind of hearing one might expect in a court of law, then the mandatory arbitration of wage claims would be enforceable.

By |2023-11-24T10:54:07-08:00September 11th, 2019|

Will California Join Illinois in Limiting Use of Artificial Intelligence in Hiring Decisions?

Supposedly, the reason for using an AI program to evaluate potential job candidates is to eliminate bias that might be held by human evaluators. But privacy and worker advocates have been concerned about the expansive nature of the evaluation that is done. AI can be programmed to analyze facial expressions and/or eye contact, the speed of a person's response, and other non-verbal cues that are not generally considered relevant to most job applicants.

By |2023-11-24T10:55:10-08:00September 10th, 2019|

San Diego Employers: Deadline to Comply With Anti-Harassment Training Requirements Pushed Back to January 2021

Under this new law, supervisory employees would be required to have two hours of anti-harassment training (up from one hour) every year and non-supervisory employees would be required to undergo a one-hour prevention training class/video.

By |2023-11-24T10:56:11-08:00September 9th, 2019|

Can I Prohibit Negative Online Reviews With My Consumer Contracts? FTC Says “No”

The FTC is tasked with enforcing several federal laws including the Federal Trade Commission Act ("FTC Act") and the Consumer Review Fairness Act. The FTC Act prohibited unfair and deceptive business practices and unfair and deceptive advertising. The Consumer Review Fairness Act was enacted by Congress to prevent companies from unduly interfering with consumers' rights to post online reviews.

By |2023-11-24T10:56:56-08:00September 8th, 2019|
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