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.



 
 
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.
 
 
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.
 
 
Whether you have been in a vehicle collision, or have been injured as the result of another accident, there are a few things you should do to ensure that your rights are protected:
THINGS YOU SHOULD DO AFTER AN ACCIDENT:

- File an accident report.   Regardless of the circumstances that lead to your injury, you need to file a report.  If you were in a vehicle collision, you should insist that a report is filed with law enforcement to ensure the facts are accurately preserve.  If you are injured on the premises of a business, you should file a report with the manager or owner.  Attempt to get a copy of the report, or the information that will allow you to get a copy of the report once it is completed.

- Obtain Information:  Information that you should collect includes the name, address, and phone number of any witnesses, or people involved in the accident. If possible, and practical, obtain photographs of the vehicles, and/or the area where the accident occurred, and any visible injuries.  (Avoid taking photographs if it will place you or others in jeopardy.)  Get insurance information where appropriate.  In California, drivers are obligated to carry insurance, and provide that information when involved in a collision.

- GET HELP:   There are two types of help you will need after an accident medical, and legal.

  • Medical Care:  The timing and nature of the medical treatment that you obtain following a collision or other accident is often overlooked.  When you are injured, you should seek medical attention as soon as possible.  Tell the physician what happened, and be honest about every injury or complaint regardless of how minor it seems at the time.  Do not exaggerate your complaints, but also do not ignore or minimize them.
  • Legal Assistance:  Obtain legal advice as soon as possible.  DO NOT give any information about the accident to an insurance adjuster, or make any recorded statements without consulting with an attorney first.  Also, do not sign any document without consulting with an attorney.  Both of these are common mistakes most people make following an accident that jeopardize their rights and any recovery they may be entitled to.