by Andy Chen | Jun 8, 2020 | California, Enterprise
Years ago, it was probably fairly difficult for the average person to form a legal entity like a corporation or limited liability company (LLC). Nowadays, however, it’s much easier and can often be done with a few clicks online and a credit card. The result I’ve seen is that entities like corporations and LLCs are much more common now with people who have small business or are otherwise self-employed. Because an entity like a corporation or LLC is its own distinct entity, however, problems can sometimes arise. One of the problems I see by virtue of what I do is when the entity needs to go to court. For example, the entity might need to sue to collect from a customer or client who is refusing to pay their bill. Or, the entity might be sued by someone else for breaching a contract, for instance. If an actual person needed to file a lawsuit or defend against a lawsuit, they can hire a lawyer, but they can also represent themselves in court. If your business is the same as yourself (i.e. a sole proprietorship), you can represent your business also because the two of you are one and the same. However, if you have a legal entity of some kind — for example, a corporation or LLC — that ability goes away. In other words, if you have a legal entity for your business, you can’t represent that entity in California unless you’re also a California-licensed attorney. Phrased another way: legal entities must be represented by attorneys in court in California. In most situations, the cost of hiring an...
by Andy Chen | Jun 2, 2020 | California
Photo: The photo above is the Stanislaus County Recorder’s Office at 1021 I Street, Modesto, CA 95354. This post is the first in a series that I’ll be writing on California Mechanics Liens. I’ve dealt with mechanics liens quite a bit in the course of the last year or so in dealing with my regular cases and figured it would be good for at least a few posts. If you like this topic, please do leave me a comment below. Instead of addressing mechanics liens based on complexity (e.g. start with simple stuff then build in to more complex questions), I’m going to start this series by addressing the situations that I personally encounter the most often — if you’re someone employed in the construction trades (e.g. carpenter, roofer, etc) and you’ve worked on a project and are now having trouble getting paid, what do you do? When faced with a situation like that, the big thing I want to find out about is the Preliminary Notice and that’s the topic of this post. To keep things simple, I’ll describe briefly what a Preliminary Notice is, but I’ll focus mainly on what a Preliminary Notice in California is required to contain from the perspective of someone employed in the construction trades who should have been paid, but has not been. In future posts, I’ll also go over the intricacies of who has to provide a Preliminary Notice, who has to receive one, how it has to served, etc. What is a Preliminary Notice? A bit of background first: The good news is that California law is very friendly towards...
by Andy Chen | May 17, 2020 | New York
In a prior post, I went over the California statutes that specify the amount of the California state minimum wage. When discussing the minimum wage, remember that it is important to be specific as to which one you’re referring to because the federal government has one as do many of the states. To make things more confusing, depending on the state you’re talking about, many cities also have their own higher minimum wages. In this post, I’m going to go over the statute — section 652 of the New York’s Labor Law — describing the state minimum wage in New York. As it is in California, New York’s minimum wage statute is too long to simply past here verbatim so I’m going to have to paraphrase. Like in California, New York varies it’s minimum wage by both time and the number of employees a particular employer has. New York, however, also varies it’s state minimum wage by county and region. For example, in New York City, Labor Law section 652(1)(a) says the minimum wage for employers with eleven or more employees is: “$11.00 per hour on and after December 31, 2016, $13.00 per hour on and after December 31, 2017, $15.00 per hour on and after December 31, 2018, or, if greater, such other wage as may be established by federal law pursuant to 29 U.S.C. section 206 or its successors or such other wage as may be established in accordance with the provisions of this article.” For New York City employers with fewer than eleven employees, the minimum wage is: “$10.50 per hour on and after December...
by Andy Chen | May 14, 2020 | California, Employment
A lot of my ideas for blog posts come from topics I encounter while doing research on something else, usually a case I’m working on. In this post, I’m going to go over one of those topics — namely, the statute in California where the amount of the minimum wage is set. Much is said about the minimum age normally (e.g. it hasn’t gone up in X years, etc), particularly now. As I write this, it is mid-May 2020 and many people — at least a few earning minimum wage — are out of work or have been out of work for the last several weeks due to corona virus. When discussing the minimum wage, it’s important to be clear about which one applies. The federal government has one. Many states (e.g. California) have one. Many cities within a state also have one. For example, the city of San Jose, CA has a local ordinance ( San Jose Ordinance # 298929) specifying the minimum wage as $15.25 as of May 14, 2020. Many other cities in the vicinity of San Jose, CA also have higher minimum wages than what the state of California requires. In California, the statute that describes the amount of the minimum wage if California Labor Code section 1182.12. That statute is fairly long so I can’t paste the entire thing here. There’s a lot that goes over a lot of math and other computations that needs to be done. The parts that I’m guessing most of you will be interested in is where the actual values of the minimum wage are specified. That’s in section...
by Andy Chen | Apr 25, 2020 | California, Statutes... and stuff
Most people have heard of the term “burden of proof.” Often, this is from TV shows and movies. In this post, I’m going to go over two slight variants to burden of proof that lawyers often use and that most people probably have not heard of before — namely, the “burden of production” and the “burden of persuasion.” To some degree, all three burdens refer to the same thing, but lawyers often use burden of production and persuasion as those are more precise terms. I’m going to talk specifically about California and cite to California statutes, but these concepts are not California-specific. A same or similar type of discussion can, I think, be done in other US states also. In broad terms, the “burden of proof” refers to which party has the obligation to prove the allegation in question. In California, the general rule is that the party that is asserting a claim or defense has the obligation to prove said claim or defense. In California, this rule is in section 500 of the California Evidence Code which provides: Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. This rule applies to all parties in a case. For example, in a criminal case, the prosecutor has the burden of proving the charges alleged, such as that the defendant robbed a bank. However, the defendant might try to defend himself by saying that he couldn’t have robbed the bank because at the time...
by Andy Chen | Apr 13, 2020 | California, Law, in real life
In this post, I’m going to go over a law that, as best I can tell, is unique to California. If I’m wrong and you have a similar law in your state or country, drop me a comment. The California law in questions is section 17602 of the California Business and Professions Code. As it is a California law, it only applies to California consumers. However, if I run a business and have to invest (e.g. buy new software, etc) to comply with section 17602 for my California-based customers, I see no reason not to apply section 17602 to my customers who aren’t in California also (as long, of course, as it benefits my business in some way). My marginal cost of doing so is basically zero. Section 17602 applies to transactions where consumers purchase a subscription to something, such as a magazine or a monthly-box service (e.g. each month you receive a new box of a certain category of item, such as men’s clothing, pet treats, etc). These subscriptions often are recurring on a monthly or year basis. The consumer — at least in theory — has the option to cancel their subscription at the end of each monthly or yearly-term. How it often works out, though, is that the consumer ends up being charged for things they weren’t expecting. This might be the consumer’s fault because they, for instance, forgot to cancel their subscription in a timely manner and ended up getting charged for another year. Or it could be because the company is unscrupulous and decided to ignore the consumer’s timely request to cancel their subscription....
by Andy Chen | Apr 11, 2020 | California, Constitutional Law, Criminal law
In this post, I’m going to go over a situation that I’m sure we’ve all seen. I’m not sure how often it occurs in reality, but when it does occur, it always seems to go viral. Can you take a photograph or video of law enforcement when they’re making an arrest or detaining someone for an investigation? A lot of the videos I’ve seen before where, for example, someone tries to record law enforcement officers making an arrest involve one or more of the officers threatening or informing the person to put their camera away because making a recording “interferes” or “obstructs” the officers in some way. Three thoughts come to my mind in response to a statement like that: There are enough cameras nowadays everywhere that we’re all being videotaped and photographed in some way every day. This doesn’t even consider the stuff that people voluntarily share on social media. It’s implausible for anyone to expect that anything they do out in the open on a public street is private or confidential in anyway. If you want privacy, confidentiality, etc, you’re not going to find it on a public street. Government is supposed to be transparent as well which means that any government employee (e.g. law enforcement officers) should expect that the public would be interested in what they do. For all of these reasons, I personally don’t buy in to the argument that merely recording or photographing law enforcement officers detaining someone, arresting someone, etc is obstruction, interference, or is in some way improper. If you feel similarly and you’re in California, you’re in luck because California...
by Andy Chen | Apr 6, 2020 | California, Torts
Nowadays, it is quite common for individuals to take photographs and/or videos of a sexual nature and share them with their current relationship partner. Unfortunately, sometimes the relationship ends in an acrimonious way and the recipient of said photographs and/or videos decides — who might feel wronged or slighted — decides to share them with others as a way of getting even. The term “Revenge Porn” is often used to describe this situation. In California, perpetrators of Revenge Porn (i.e. those who share sexual photos and videos of others) can be punished in a variety of ways. For example, there’s criminal prosecution under California Penal Code section 647(j)(4), which I will cover in a later post. One key thing I’ll point out now, though, is that if the victim in a Revenge Porn case is a minor (e.g. 16 or 17 years old), additional charges related to, for instance, child pornography may be on the table also. Many criminal sentences (e.g. jail time) are also increased for Revenge Porn cases involving a victim who is a minor. In this post, I’ll briefly go over the civil suit liability under California Civil Code section 1708.85(a), which provides: “A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse,...
by Andy Chen | Mar 31, 2020 | California
Here is a video I have on my Youtube channel where I go over guarantees a lawyer might make a client make ask for when it comes to the outcome of a case. In short, I argue that it’s not realistic for a client to ask their lawyer for a guaranteed outcome (e.g. the client will win at trial, etc). The reason is because that outcome will depend on many factors that are outside of the lawyer’s control. At a minimum, it will depend, for instance, on what evidence the opposing party or parties have, what witnesses will testify to, and the habits and idiosyncrasies of the judge and jury. In my experience, many clients don’t understand this and think incorrectly that they should hire a lawyer who gives a guarantee over a lawyer who does not. If you are in a position where a prospective attorney is offering you such a guarantee, it may be prudent to stop and ask yourself whether this attorney is just offering you the guarantee in order to get your business and your money. In this blog post, I’m going to add on to my video above by citing to some authority, specifically the California Rules of Professional Conduct (CPRC). I have a video on my Youtube channel about the CPRC also which I’ll embed below. That video is a bit old so it uses the old CPRC numbering scheme of a number, a dash, and additional numbers (e.g. Rule 3-100). The current CPRC scheme dispenses with the dashes in favor of decimal points (e.g. Rule 1.5). If any of you need it,...
by Andy Chen | Mar 10, 2020 | New York, Torts
A while back, I wrote a post about what civil battery under California law. This post is going to be the comparable post for New York law. Law school in the US is somewhat generic in that you learn what a given offense (e.g. civil battery) is in the abstract, even though the actual criteria for the offense in the real world will dependent on the state. When I learned about civil battery, for example, I learned it as “a harmful or offense touching either done with subjective desire or knowledge to a substantial certainty”. If you’re thinking that that rolls off the tongue, you’re correct. When you actually want to sue someone for civil battery in the real world, however, you need more specific criteria than that. In California — as I described in my previous post linked above — the criteria for civil battery can be found in the So v. Shin case (cite: So v. Shin (2013) 212 Cal.Appl.4th 652, 669) as: defendant touched plaintiff, or caused plaintiff to be touched with the intent to harm or offend plaintiff, plaintiff did not consent to the touching, plaintiff was harmed or offended by defendant’s conduct, and a reasonable person in plaintiff’s position would have been offended by the touching. Under New York law, the comparable criteria for civil battery are: defendant intentionally made bodily contact against the plaintiff, that this contact was harmful or offensive to the plaintiff, that plaintiff did not consent to the contact, and These criteria are recited in a number of New York state cases including (1) Wende C. v. United Methodist Church...
