During the course of a court case, or other litigation activities, it often becomes necessary to obtain documents to support your case. When the individual or organization that has the records are not a party to the case, you must obtain them by using a subpoena. With a subpoena, you can get bank records, employment records, telephone records, medical records, etc.
Using a subpoena is usually a two-part process: First, if the records relate to a Consumer/Employee, you must have that person served with a“Notice to Consumer or Employee” and the subpoena, and give them at least ten days to object (see CCP 1985.3(b)). If there are other parties in the case, they get served with copies of the Notice and Subpoena too.2) If the Consumer/Employee doesn’t object, you then have the papers personally served on the Witness, and give them at least 15 days to respond. They should respond by sending you copies of the records you request. If the Consumer/Employee objects, the Witness can’t respond until the objection is resolved. (CCP 1985.3(d) and 2020.410(c)).  
The author of the work automatically receives a copyright once it is “fixed in a tangible medium”.  Registration with the Copyright Office is not required to create or maintain copyright, unless the owner institutes an infringement suit.  However, registering in advance bestows certain advantages if the work is infringed. For example, registration in advance entitles the author to pre-established damages and attorney’s fees.

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[1]Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”[2]  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).

California Civil Code Section 3294, states:“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

“Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

“Fraud” means “intentional misrepresentation or deceit.”

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff” or that shows a “willful and conscious disregard of the rights or safety of others.”

What are some of the common scenarios where punitive damages are awarded?In order to be successful in obtaining punitive damages, you must have sufficient evidence to show that one of the above definitions apply under a higher burden of proof (clear and convincing evidence) than a normal civil claim preponderance of the evidence). The difference means that the evidence must be in the plaintiff's favor much more strongly than the 51% standard of a  typical civil claim.  However, there are many instances where punitive damages apply to either a personal injury or an employment claim.  Some common examples include the following:

  • Car accident claims where the defendant was driving under the influence of alcohol or drugs (DUI/ DWI) at the time of the accident.
  • Intentional torts (assault, battery, sexual assault, sexual abuse, etc.)
  • Some wrongful termination claims
  • Cases of fraud
Since these claims allow you to recover additional damages above and beyond just those meant to compensate you for your losses, it is important that you consult with an attorney on these claims as soon as possible following the incident giving rise to the claim to ensure that the evidence needed to prove your claim is properly secured, gathered, and presented at trial.

Non-compete clauses are those that attempt to restrict a former employee from entering the same trade or profession after departing from a company.  Non-compete clauses have become increasingly prevalent in modern labor market as companies seek to keep their employees from using the experience and information they gain in one position from turning into a liability when those employees find jobs elsewhere.  Although other states allow such clauses, generally, non-compete clauses are illegal in California.  The same is true of non-competition and non-solicitation clauses in employment contracts. 

California has consistently upheld a public policy against any provision that seeks to restrain competition in the context of employment agreements.   In perhaps the most notable case on the topic Edwards v. Arthur Andersen LLP, 44 Cal.4th 937,  the California Supreme Court, unanimously held that Business & Professions Code Section 16600 invalidated a provision in Edwards' employment agreement that restricted him from servicing customers and competing with Arthur Andersen following the termination of his employment.  Notwithstanding the general premise that non-competition agreements are invalid, specific Sections of the B&P Code provide certain exceptions to California's policy against enforcing non-competition covenants which apply in limited circumstances.

There are two notable exceptions:  Sale of Goodwill of a Business, and Dissolution of a Partnership or Limited Liability Company.

When a person who sells the “goodwill of a business” or otherwise disposes of his/her ownership interest in the business entity. This person may agree with the buyer to refrain from carrying on a similar business within a specified geographic area in which the business is sold.  When the goodwill of a business is sold, non-competition covenants are generally enforceable because it would be "unfair" for the seller to engage in competition which diminishes the value of the assets he sold. 

Other exceptions concern the dissolution of either a partnership or limited liability company.  Again, in these circumstances, the person who is leaving the existing entity agrees that he or she will not carry on a similar business within a specified geographic area where the existing partnership or limited liability company is located.

Attempts to avoid California's policy against non-competition covenants by making contracts subject to the laws of a  jurisdiction outside of California often fail.  Typically, California courts will enforce a contractual choice of law provision if the chosen state has a substantial relationship to the parties or their transaction, or if there exists any other reasonable basis for the parties' choice of law, unless, the chosen state's law is contrary to the fundamental public policy of California. 

If you are uncertain whether a clause in an employment agreement is enforceable in California, contact our office for a free evaluation of your specific situation.

The question is often asked:  “I was just in a car accident, do I need a lawyer?”

Not every claim which you are considering against another party requires an attorney. The underlying facts of your particular circumstances will really determine when you need to involve the services of an attorney. For instance, if you are involved in an automobile accident which was not your fault and but did not sustain any injuries, then you may be successful in handling the claim without an attorney.  However, if you were injured, you will be best served by consulting with an personal injury attorney.

After the accident, the first thing to do is obtain as much information as possible regarding the other driver, the vehicle and the circumstances.  If possible get photos that document the damage to each vehicle.  At some point following the collision, insurance adjusters for each driver involved will contact you to obtain information about your claim, including your property damage, medical bills, lost wages, and medical records. Remember that the adjusters are there to evaluate whether a claim should be paid.  Although you should be honest, you must remember that any information that you provide especially statements, may complicate the process of settling your claim. Frequently, the insurance adjuster is seeking to prove your fault or diminish the value of your claim. In such instances, your best course of action is to retain an attorney before you speak with anyone regarding the circumstances of the collision. Even when fault is clearly placed on the other driver, adjusters may attempt to “low ball” you with an offer that is not fair for the injuries and damages you have suffered.

Another consideration regarding the decision to involve an attorney relates to the amount or availability of insurance coverage to pay your damages. If the person who has injured you (in a car accident or otherwise) has multiple types of insurance and policies, it is not always easy to discover that information. The person might have insurance with separate companies which the adjuster with whom you are negotiating is not aware.  An attorney will be able to discover this information and help level the playing field.

If you did not get injured, or if you suffer minimal injury or damages, it is frequently not worth getting an attorney involved.   You should not go to an attorney with the hope or thought that he will make your damages higher by helping you get unnecessary medical treatment from “plaintiff friendly” doctors. These types of claims not only cost you more in the long run, but also slow down the judicial system.

This does not mean that you should not get thoroughly checked out by your physician following an accident. If you are unsure whether you are injured you should consult with a medical provider for an evaluation.  Be honest with them and do not downplay or exaggerate your injuries.Sometimes injuries which at first seem minor, develop into serious life altering conditions. Do not assume that just because you are able to leave the site of any accident (automobile or other), that you are medically o.k. Get your own doctor to perform a thorough examination.

Contact the Law office of Sean M. Patrick for a free no obligation consultation for any of your personal injury claims.

Every state has its own time limits in which you are able to take legal action to redress a wrong. These time limits are called statutes of limitations, and they vary according to the type of claim you wish to pursue. The law is inflexible,  and these time limits are generally inflexible, meaning if you do not file a lawsuit with the specified time you will be unable to recover for your injuries or damages.  

Below you’ll find California’s statutes of limitations for many common types of lawsuits. You should consult with an attorney to fully evaluate your potential claim, and determine which limitations period applies.

  • Medical malpractice actions: Three years from the date of injury or one year from the date of discovery of the injury, whichever occurs first. (There are exceptions for minors.)
  • Breach of an oral contract: Two years.
  • Breach of a written contract: Four years.
  • Personal injury claims (for example: dog bites, auto collisions, slip and falls, premises liability, motorcycle accident, wrongful death, etc.)  : Two years.
  • Employment Discrimination, Harassment or Retaliation:  Under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) – Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation.  Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court. However, under federal rules, specifically under Title VII, ADEA and ADA, claims in California must be initially filed with the Equal Employment Opportunity Commission within three hundred days.  Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court.
One common question in wage and hour complaints is “When should I receive my final paycheck?” The rules on payment of final wages vary depending on the circumstances of the employee’s departure.

If you were fired: If your employer fires you, the wages earned and unpaid at the time of discharge are due and payable immediately at the place of discharge. (Labor Code §§201(a); 208.)  As with any good rule, there is an exception for employees in “seasonal employment in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables,” who may be paid within 72 hours of termination. (Labor Code §201.)

If you were laid off: Under the opinions from the California Labor Commissioner, an employee who is laid off without a specific return date within the normal pay period has been effectively terminated and must immediately be paid all wages due and payable. If you are laid off with a return date within the pay period, the wages may be paid at the next regular pay day. (2002 Division of Labor Standards Enforcement Policies and Interpretations Manual §3.2.2 (rev 2009).)  

If the business was sold (and closed):  Under the opinions from the California Labor Commissioner, the sale of a business effectively terminates the company’s employees, all of whom must be paid any earned wages, along with any accrued vacation. (DLSE Manual §

If you quit: If the employee doesn’t have a written employment contract for a definite period of time (e.g., a contract for 1 year of employment) and voluntarily quits his or her job, the payment of final wages depends on the timing of the resignation (Lab Code §202):

  • If the employee gave at least 72 hours’ prior notice of his or her intention to quit, the employee must be paid his or final wages on the final day of employment.
  • If the employee gave less than 72 hours’ prior notice of his or her intention to quit, the final wages are due 72 hours after notice of the resignation was provided.
An employee who quits with less than 72 hours’ notice must physically return to the office or agency of the employer in the county in which the work was performed to recover his or her final wages unless the employee requested payment by mail and provided a mailing address for his or her final paycheck. (DLSE Manual §3.7.  Labor Code §208.)

If you are an employer: The best way to ensure that you don’t run into a complaint for payment of final wages is to incorporate the above rules into your policies and ensure your HR department is following them.  

As an example a sound policy addressing the payment of final wages may contain the following four statements:

  1. An employee who is terminated involuntarily will be provided with a final paycheck at the time of termination.
  2. An employee who provides at least 72 hours’ notice of his or her resignation will be provided with a final paycheck on the last day of work.
  3. The final paycheck of an employee who resigns with less than 72 hours’ notice will be made available at the employee’s regular workplace within 72 hours of the employee’s last day of work, unless the employee requests in writing that the paycheck be mailed.
  4. Final paychecks will include payment for wages owed, including any accrued but unused vacation time, minus any authorized or required deductions.
When your employer takes action against you because of  certain personal characteristics, you may have been the victim of Employment Discrimination.  California and Federal law specifically prohibits employers from treating employees unfairly because of their race, sex, color, national origin, age, religion, disability, marital status, medical condition, sexual orientation or gender identity. For example, if you were fired because you are female, pregnant, or have a disability, you likely have a valid claim of discrimination against your employer. 

If you have experienced job discrimination and you cannot resolve the situation with your employer, you should consult an attorney to assist you with filing a formal claim with The state Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC) who investigate claims of job-related discrimination.  This is the first step in resolving your discrimination claim.  In fact, you cannot file a lawsuit without first filing a claim with one of these agencies.    Your initial statements to the DFEH or EEOC could limit what you are allowed to claim in any future lawsuit. An attorney will help ensure that your claim is filed properly providing you with the best opportunity to obtain a recovery for the discriminatory treatment.  Generally, a claim must be filed with the DFEH within one year of the discriminatory event. Alternatively, a claim must be filed with the EEOC within 300 days of the discriminatory event. 

Finally, if you’ve avoided reporting illegal discrimination or filing a claim with the DFEH or EEOC for fear of retaliation, you should be aware that state and federal law prohibits employers from firing or otherwise retaliating against any employee who complains about discrimination. If you are claiming retaliation, be sure that it is specifically referenced in the form that the agency prepares on your behalf.

Contact the law offices of Sean M. Patrick for an evaluation of your potential discrimination claim.  

Is there a minimum that I should be paid?The minimum wage in California is $8 per hour until July 1, 2014, when it will increase to $9 an hour. On January 1, 2016, the minimum wage will increase again, to $10 an hour. 

Is the minimum wage different in California for tipped employees?Although the FLSA and the laws of some states allow employers to pay tipped employees a lower minimum wage, California law does not. In California, tipped employees are entitled to the full minimum wage for every hour worked.

Am I entitled to a lunch or rest break in California?
Yes. Employees in California are entitled to a meal break of 30 minutes, unpaid, after five hours, except when the workday will be completed in six hours or less and the employer and employee consent to waive the meal break. The employee cannot work more than ten hours a day without a second 30-minute break, except if the workday is no more than 12 hours. The second meal break may be waived if the first meal break was not waived. An on-duty paid meal period is permitted when the nature of work prevents relief from all duties and the parties agree in writing. Employees are also entitled to a paid ten-minute rest period for each four hours worked or major fraction thereof, as practicable, in the middle of the work period. This is not required for California employees whose total daily work time is less than three-and-a-half hours.

Am I entitled to overtime pay?
In California, eligible employees must receive overtime if they work more than eight hours in a day or 40 hours in a week. After working 12 hours in a day, California employees must receive double time. If an employee works on a seventh day, that employee is entitled to time and a half for the first eight hours of work and double time for additional hours. Not every type of job is eligible for overtime. 

My Employer says I am "exempt."  What does that mean?
Exempt employees are those that meet certain criteria that are not entitled to overtime pay.  Some of the most significant  lawsuits have been the result of an employer's misclassification of employees as nonexempt employees as though they were exempt from California overtime. 

Job titles alone do not determine if a California employee is exempt or nonexempt. An employee with an impressive job title may not qualify as an exempt employee if his/her actual duties do not meet the requirements for one of the exemptions. To determine whether the California employee is primarily engaged in exempt work, the court will examine the work performed by the employee during the workweek.  Also, exempt employees generally must earn a minimum monthly salary of no less than two times the state minimum wage for full-time employment. Paying an employee a salary does not make them exempt, nor does it change any requirements for compliance with wage and hour laws.  Most California employees who are classified as exempt customarily and regularly exercise discretion and independent judgment in their jobs. 

If you believe that your employer is not following the rules for California's Wage and Hour Laws, contact our office for a FREE case evaluation.
In California, drivers are required to carry liability insurance.  Proposition 213, also known as the Personal Responsibility Act of 1996 provides that that those who are in an automobile accident that do not carry automobile liability insurance as required by the California Financial Responsibility Laws are not entitled to recovery of non-economic damages for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages.  The provisions of Proposition 213 are embodied in the Civil Code §§ 3333.3 and 3333.4.

You should always make sure that you have insurance on your vehicles and that any vehicle you drive is insured.

An exception to Proposition 213 occurs when the driver of the “at fault” vehicle was under the influence of alcohol or drugs at the time of the accident. Additional exceptions to Proposition 213 include minors, and those individuals making a claim for wrongful death damages.