San Diego Estate Planning Lawyer Blog

San Diego: Have you ever wondered why part of our freeway system is named Ted Williams Parkway? How does this impact an estate plan in his case?

Most San Diegans remember when the Ted Williams Parkway off Interstate 15 was named in honor of Boston Red Sox legend Ted Williams. But do you know why it was named in his honor?

Ted Williams grew up in North Park in San Diego and attended Hoover High School where he played baseball. He signed with the Padres, then a minor league team, before joining the Boston Red Sox in 1939. He had an amazing career in major league baseball, with 2 MVP awards and 2 Triple Crown awards. A left-hander and incredible hitter, he, along with Mickey Mantle and Babe Ruth, is a member of the 500 club, for hitting more than 500 home runs in a season.. In 1992 Ted Williams was here in San Diego for the dedication of SR-56 east of I-15 now known as Ted Williams Parkway.

Ted Williams is also famous, or maybe infamous, for another reason. In 2002 after Ted Williams died, a dispute arose over the disposition of his body. John-Henry Williams, Ted’s son, had the body flown to Scottsdale, Arizona where his head and body were surgically separated and put into cryonic suspension at Alcor Life Extension Foundation. His head was put in one cylinder and the rest of his body upright in another. Barbara Joy Ferrell, Ted’s daughter by his first wife, said her father wished to be cremated and his ashes spread over the Florida keys where he frequently fished. The dispute pitted family member against family member as each had different theories as to what their father would have wanted.

This very public and macabre ending to the baseball star’s life and death illustrates the importance of having your wishes specifically set out in a will or trust. Ted Williams had a will made in 1996 but his son John-Henry found a handwritten piece of paper dated November 2000 which he claimed was signed by his father and set out Ted’s wish to be frozen at Alcor. If you have specific wishes about what should happen to your body upon your death, it should be spelled out in a valid legal document to avoid disputes among family members after your death. You can specify whether you want burial or cremation or some other disposition such as cryonic suspension.

Contact us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation about estate planning documents to insure your post-death wishes are carried out. Please feel free to e mail or call us.

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In San Diego, and California, there are many governmental agencies. Below is a list of links of some of the most important for your use and reference. In our firm of Pinkerton, Doppelt & Associates, LLP, we want to make sure you have information to make an informed and intelligent decision regarding legal services as well as other services. Official government websites can assist in obtaining reliable information as well as making sure that the information received is current and up to date. This is not a comprehensive list and is intended only for the reference of our viewers.

In San Diego, there are many useful websites in addition to the ones for the State of California below. The San Diego District Attorney office is a very informative website regarding the workings of the main prosecutor's office in San Diego. The website for CalTrans is very useful since you can obtain current traffic information and, currently, there is also a service on mobile phones if you dial "511" for current traffic information in the event you are not near a computer with internet access.

The California Department of Motor Vehicles is one agency in which people have many questions and the lines can be long at the local departments so a web search can save time. Another website which is useful is the California Secretary of State. This has many government services listed. Some find the California State Library a very useful website for information as well.

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In San Diego, the District Attorney's Office prosecutes criminal offenses. The District Attorney's Office also has its own Report every year of their statistics for the public's review. Crime affects all of us in San Diego, California and this document summarizes 2007 in many respects.

In San Diego, the District Attorney's Office employs hundreds of attorney and thousands of staff. The Report includes staffing, office locations, cases and statistics, fiscal review, organizational chart and also awards.

Our office of Pinkerton, Doppelt & Associates, LLP includes this in our blog as a public service.

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In San Diego, California, there are many citizens, residents and visitors who enter the United States from Mexico. In San Diego County, there are two major border crossing facilities: San Ysidro and Otay Mesa. These are operated by the Department for Homeland Security. In order to enter the United States, you must prove that you are a United States Citizen, a United States Permanent Residence or a Legal Alien (visitor for any number of reasons) and there are many documents which can establish this.

In San Diego, many citizens travel to Canada, Mexico, Bermuda and the Caribbean by land and sea. The State Department has recently begun accepting applications for the United States Passport Card. This will facilitate entry and expedite document processing at United States Ports of Entry. In San Diego, this is very applicable since many citizens take cruise ships and enter at the Port of San Diego.

This card will have the same validity period as a passport book: 5 years for children age 15 and younger and ten years for adults. The passport card will contain a vicinity-read radio frequency identification chip known as RFID. This will facilitate frequent border travelers. There are many technical rules and these are included on the website.

At Pinkerton, Doppelt & Associates, LLP, we know how important it is for our clients to have the most up to date information on any changes in the law which may affect their life. In San Diego, California, passport books can now be obtained from many local post offices and our firm recommends this as a strategy for first time passport applicants as well as renewals due to being able to appear in person for the passport and this lessens the possibility of documents being lost in the mail.

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In San Diego, everyone is waiting for their stimulus payments from the Internal Revenue Service. As a public service, with making no representation, guarantee or warranty as to the date any tax payor receives or does not receive their stimulus payment, below is the schedule which has been provided for use by the general public. In addition, as a courtesy to our blog viewers, we have provided a link to the calculator for you to determine the amount of your stimulus payment. The San Diego Post Office will have a lot of extra mail.

All tax payers who filed their returns by the due date of April 15, 2008, will be receiving their stimulus checks [assuming they are eligible under the law of course] this calendar year. The payments will proceed by the last two digits of the main filer's social security number. These are also broken down into two categories: Direct Deposit and Paper Check.

All tax payers who file their returns after April 15, 2008, will receive their stimulus payment and the payment will be later than the tax payers who filed on the due date. A return must be filed by October 15, 2008, in order for a tax payer to receive a stimulus payment for this year.

PAPER CHECK

PAYMENTS MAILED BY LAST TWO SOCIAL SECURITY NUMBER DIGITS

May 16, 2008 00-09
May 23, 2008 10-18
May 30, 2008 19-25
June 6, 2008 26-38
June 13, 2008 39-51
June 20, 2008 52-63
June 27, 2009 64-75
July 4, 2008 76-87
July 11, 2008 88-99

DIRECT DEPOSIT

PAYMENTS MAILED BY LAST TWO SOCIAL SECURITY NUMBER DIGITS
May 2, 2008 00-20
May 9, 2008 21-75
May 16, 2008 76-99

Our law firm of Pinkerton, Doppelt & Associates, LLP wanted to post this for your information and hope your stimulus payment arrives according to the above schedule. If not, contact your Certified Public Accountants as necessary.

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In San Diego, a Federal District Judge ordered that Mr. Kyle be barred from preparing tax returns for others. San Diego has both State and Federal Courts and the ruling was issued by San Diego Federal District Chief Judge Gonzalez. This preliminary injunction prevents Mr. Kyle, a resident of San Diego, California, from preparing tax returns for others as well as his companies. If you are a client of Mr. Kyle, you need to seek immediate assistance from a qualified Certified Public Accountant who can review your returns as Mr. Kyle is alleged to have prepared and filed over 10,000 returns since 2000 with an estimated tax loss of over $18,000,000. You will also want to seek the assistance of our law firm, Pinkerton, Doppelt & Associates, LLP if you are charged with federal tax fraud.

The IRS is also involved in this case and is stating they will work to stop fraudulent preparers of tax returns. This is a very significant case and worthy of a news and commentary blog since this is a San Diego case and may well affect thousands in San Diego who may be audited and/or criminally charged.

Please e mail us directly if you have any notice from the IRS or Justice Department concerning this case and want a complimentary consultation.

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In San Diego, California there have been recent homes damaged in La Jolla due to the hills and homes sliding downhill and into other homes. This was recently reported in the San Diego Union. The law of torts is about apportioning risks and allocating the burden of loss. One state's highest court wrestled with these issues in a case that arose when a high-rise building collapsed during a large construction project in a past case.

The plaintiffs were businesses, from hot dog vendors to large law firms, who suffered no physical injuries to persons or property as a result of the collapse, but who lost income when city officials closed heavily traveled streets in the vicinity of the accident. The defendants were the owner, tenant, and managing agent of the building that collapsed.

It is beyond dispute that a landowner who engages in activities that may cause injury to persons on adjoining property owes those persons a duty to take reasonable precautions to avoid injuring them. On the other hand, the court had never ruled that a landowner owes a duty to protect an entire urban neighborhood against purely economic losses, and it refused to do so in the case before it. Businesses in the area may well have suffered purely economic losses due to the collapse, but the court saw no satisfactory way "geographically" to distinguish among them.

The businesses also were unsuccessful in claims based on a public nuisance theory. A public nuisance is conduct that substantially interferes with the exercise of a common right of the public. That claim's downfall was attributable to the principle that a private person or business can recover damages for a public nuisance only by showing a special injury beyond that suffered by the community at large. While the degree of harm suffered by the plaintiffs may have been unusual, the harm was not different in kind from that experienced by the rest of the community.

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In San Diego, there are many small business owners. Our firm of Pinkerton, Doppelt & Associates, LLP offers a complimentary consultation and, if we cannot assist you, we will refer you to the San Diego County Bar Association Lawyer Referral and Information Service. Please also feel free to e mail our firm.

As of January 1, 2005, the IRS increased the minimum threshold for Federal Unemployment Tax Act (FUTA) deposits. Under the previous rule, employers were required to make a quarterly deposit for unemployment taxes if the accumulated tax exceeded $100. Now the threshold is $500.

The IRS estimates that this change will lighten the load for more than 4 million small businesses. Assuming an employer makes timely state unemployment tax payments, the most that the IRS will collect from employers per employee is $56 per year. Before the threshold was increased, most employers with two or more employees had to make at least one federal tax deposit a year. Now employers with eight employees or fewer will be freed from the requirement of making as many as four FUTA deposits per year.

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In San Diego, there are many defense contractors which maintain aircraft engines. Many of these have large factories and plants. Our firm of Pinkerton, Doppelt & Associates, LLP has been in San Diego for over a decade. We would be pleased to offer you a complimentary and confidentiary consultation on an estate planning issue and feel free to send an e mail or call our firm.

A company bought an aircraft engine maintenance business and operated the business for a few years. It then discovered that the property on which the business was located was contaminated with toxic waste, both because of the company's activities and the activities of the previous owner. The company reported itself to a state environmental agency, which told the company that it was in violation of state laws and directed that the site be cleaned up. However, neither the state agency nor its federal counterpart, the Environmental Protection Agency, ever brought a proceeding to force the cleanup.

Under the state's supervision, the company cleaned up the property (incurring costs in the millions of dollars) and unsuccessfully sued the previous owner that had contributed to the contamination, in hopes of getting a contribution to the cleanup costs as well. This case is a study in how a few words in a statute can control the outcome in a dispute where large sums of money are at stake.

The claim for a contribution to the cleanup costs rested on a part of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). That statute states that any person "may" seek contribution from any other person who is or may be liable under CERCLA, "during or following any civil action" under CERCLA. The U.S. Supreme Court interpreted the statutory language as meaning that the company could not seek contribution from the previous owner (and fellow polluter) because no proceeding under CERCLA was ever instituted against the company that cleaned up the toxic waste.

The use of "may" by Congress meant that an action for contribution was authorized only if the conditions that followed were present, including a civil action under CERCLA. Appeals by the company based on the underlying purposes of CERCLA fell on deaf ears before the Court. As the Court put it, "It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

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In San Diego, there are many "wetland" areas. These can be found on the coast and also inland. All land use cases are different and all have individual facts. Land Use Attorneys can be located on three bar certified referral services in San Diego County including the San Diego County Bar Association Lawyer Referral Service, Attorney Search Network and Attorney Referral Service. Our firm of Pinkerton, Doppelt & Associates, LLP is also available to assist in your estate planning and other legal needs. Please feel free to e mail our law firm.

Land Use cases can be heard in the San Diego Superior Court or the San Diego Federal Court. An experienced attorney is needed to evaluate any land use case.

Paul owned waterfront property that included some tidal wetlands that were subject to state regulation. When he decided to extend his existing dock and add another boat lift, he submitted the necessary application to the state, but he refused to consent to a land-based inspection of the premises. Nevertheless, following the usual procedure, an inspector went to the property to make sure that plans submitted with the application accurately reflected existing conditions and to evaluate the possible impact of the project on the wetlands.

When the inspector arrived and no one answered the door, she passed through a gate with a "No Trespassing" sign on it to get into the backyard that led to the dock area. With a video camera rolling, Paul confronted the inspector, who identified herself and explained the reason for her visit. Paul told the inspector that she was trespassing, threatened to have her arrested if she did not leave immediately, and then escorted her off the property. The whole encounter took about three minutes.

Paul sued the state inspector for violation of his right not to be subjected to unreasonable searches or seizures. It is true as a general rule that an inspection of a private dwelling by a local or state officer, without either a warrant or the consent of the owner, is unreasonable absent certain exceptional circumstances. Unfortunately for Paul, his case fell within one of those exceptions, causing his lawsuit to fail. Under the "special needs" doctrine applied by the court, a weighing of several factors can justify a warrantless administrative inspection undertaken as part of a regulatory scheme.

In Paul's case, he had a diminished expectation of privacy since the outside areas around his home could be viewed by the public. Paul's privacy interest was also weakened by his having submitted the application that prompted the inspection in the first place. The intrusion by the inspector was minimal and was hardly different from the kind of observation of the property that anyone could have accomplished from the water behind Paul's house. The court emphasized that each case would turn on its particular facts, but in Paul's case the state's interest in regulating construction on tidal wetlands overrode any expectation of privacy.

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In San Diego, we have many veterans. Our firm of Pinkerton, Doppelt & Associates, LLP is pleased to offer a complimentary consultation to veterans on issues of estate planning and other issues concerning veterans. Please feel free to call our office or e mail us. Walter E. Pinkerton, Jr. is a veteran of the Vietnam War.

In San Diego, there is a San Diego Veterans Department and other resources are available. Veterans are included from the Marines, Air Force, Army, Navy and National Guard.

A new federal law has enhanced the rights of members of the armed services during active duty and on their return to the civilian workforce. The Veterans' Benefits Improvement Act makes two significant additions to the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is intended to encourage non-career uniformed service by balancing the needs of individuals in those services with the needs of civilian employers who also depend on those same individuals.

The first provision requires that civilian employers inform employees of their rights and obligations under USERRA annually. The notice requirement may be met by posting a notice where employers customarily place notices for employees. This part of the new law became effective on March 10, 2005.

The second change is an extension of employer-sponsored health care from 18 to 24 months, beginning with the person's absence from employment because of duty in the armed services. USERRA gives the individual the right to elect to continue coverage under the employer's health plan, even though the coverage otherwise would end because of the individual's absence. A "health plan" encompasses an employer's health, dental, vision, and prescription drug plans, as well as health reimbursement arrangements and flexible spending accounts. The employee, not the employer, pays for the coverage during the employee's absence. This health-care provision went into effect on December 10, 2004.

USERRA, the comprehensive legislation that was changed only in part by the Veterans' Benefits Improvement Act, is far-reaching in its impact, as it applies to private and public employers alike, regardless of size. It is subject to various conditions and exceptions that make a full reading of the law, not to mention professional guidance, advisable. USERRA affects the following areas:

* Reemployment--Employers must grant military leave for employees called to active duty or National Guard or Reserve training. On their return, the employees must get their jobs back or jobs with comparable seniority, status, and pay.

* Payroll--USERRA does not require an employer to continue to pay employees who are away on military duty (though some state laws do).

* Time Off--Employers cannot force employees to use vacation and sick days during military service, but neither do employers have to let vacation and sick days continue to accrue during the employee's absence. If the employer awards vacation days based on length of employment, the returning employee must receive vacation time that would have been given but for the military service.

* Promotions--Returning employees "step back on the escalator," whether it is going up or down. That is, they assume the place in the employer's tenure and seniority scheme that they would have had if their employment had not been interrupted.

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In San Diego, there are many franchises and franchisee's. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist you with your business planning and strategies. Please feel free to call or e mail our firm.

A franchisee's breach of the franchise agreement, such as by failure to make payments or to comply with performance standards, could result in termination of the franchise and loss of the franchisee's investment. Even without a breach, a franchisee must foresee that franchise agreements generally run for a finite period, such as 15 or 20 years. Of course, if both sides so desire, the agreement can be renewed under the same terms or perhaps even terms more favorable to the now-proven franchise. But the franchisor could decide not to renew, and it usually reserves the right to do so for its own reasons. If there is a renewal, the parties must agree again to all of the terms and conditions. The franchisor may take that opportunity to make changes in the deal to its benefit. In that event, the franchisee would be wise to give a fresh look at whether owning a franchise still makes business sense.

Anyone seriously considering buying and running a franchise needs to do the homework first, and the Federal Government has made that process more organized. The Federal Trade Commission requires franchisors to prepare a disclosure document, sometimes called a Franchise Offering Circular, that puts in one place a wealth of information about the franchisor, current and former franchisees, and what the franchisee is agreeing to when the franchise agreement is signed. Reading and understanding the disclosure document, not to mention the franchise agreement itself, is essential. One should always seek independent professional advice before making a commitment to a franchise arrangement.

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In San Diego, there are many franchise opportunities. For example, in San Diego, 7-11 stores and Little Caesers Pizza are franchises. Always check with the local Better Business Bureau and retain experienced and competent legal counsel to assist you with this business venture. Our law firm of Pinkerton, Doppelt & Associates, LLP invites you to e mail our firm with any questions and our firm does not endorse or recommend any specific franchise opportunities.

It is the nature of a franchise that, in exchange for getting to hitch its wagon to the franchisor, the franchisee agrees to give up some of the control over how the business will operate. There still should be room for putting a personal stamp on the business, but the franchise business model is not for someone who would have difficulty giving up the decision-making power that comes with starting a business. Owners of a "Mom and Pop" do not need permission for their store's color schemes, but the franchisee probably will.

As set out in the franchise agreement, the franchisor will usually have the final say about the specific goods and services that may be sold, site approval for the business location, design or appearance standards, as well as authority over an array of operational matters such as hours of operation, signs, employee uniforms, and even bookkeeping procedures. On the larger scale, the franchisor also may limit the franchisee's business to a specific territory.

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In San Diego, there are many franchise opportunities. Oggi's is a local San Diego franchise. Our law firm of Pinkerton, Doppelt & Associates, LLP does not recommend or endorse any franchise. Before signing a contract or making any agreements, it is necessary to retain an experienced attorney in the area of business law. Please feel free to e mail or call our office. AT&T has information regarding small business start up as well.

Launching a business is a little like walking a tightrope, with any long-term rewards coming only after overcoming some risk. Being well-informed and realistic from the outset is essential. One of the first considerations is the legal form that the business should take. An option that has the potential for achieving a good balance between risk and reward is the franchise.

A franchise is a relationship between the owner of a trademark or trade name (franchisor) and an individual or entity (franchisee) who contracts to use that legally protected identification in a business. The details of the relationship are controlled by a franchise agreement, but most franchises share some common characteristics. Typically, the franchisee sells goods or services that are either supplied by the franchisor or at least must meet standards set by the franchisor. In simple terms, the franchisor provides the ingredients that come from the proven experience of an established line of businesses, while the franchisee provides the elbow grease and all of the other intangibles that are needed if a fledgling business is to get off the ground and prosper.

There are two types of franchises. The simpler version, known as a "product/trade name franchise," is the sale of the right to use a business name or trademark. In the more complex form, called a "business format franchise," the fates of the parties are tied together more closely and for a longer period of time. In this format, the franchisee trades some of its independence in exchange for various forms of assistance from the franchisor.

One benefit of a franchise is that the prospects for a healthy bottom line are enhanced, since the risks of the investment are reduced by being associated with an established company and its good name. But that boost is not without cost. A would-be franchisee should always be aware of the financial commitment involved, but not be too quickly scared away by the reality that here, as in most business matters, "you have to spend money to make money."

It is only prudent to consider carefully a number of likely expenses. There is the initial franchise fee, sometimes nonrefundable and usually at least a few thousand dollars. Costs to rent or build an outlet and to purchase the initial inventory will be significant. The full range of expenses depends on the type of business, but some of the other typical expenses include fees for licenses and insurance, ongoing royalty payments to the franchisor based on income and for the right to use the franchisor's name, and payments into the franchisor's advertising fund.

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In San Diego, we have one federal court which handles bankruptcy and several state courts which handle civil suits such as the one below in the San Diego Superior Court. Our law firm on Pinkerton, Doppelt & Associates, LLP would be pleased to offer you a complimentary consultation on estate planning or family law. Please feel free to e mail or call us. The below is used for illustration purposes only as are all of the blog postings.

Four years after Edward opened a credit card account with one of the major credit card companies, he married Linda. Linda became an authorized user of the card, but she was not, as the credit card company would later claim, a co-applicant for the card. Some years later, without telling Linda, Edward filed for bankruptcy. The credit card company took Edward's name off of the account and notified Linda that she was responsible for the balance on the account, which amounted to many thousands of dollars. After she learned about Edward's secretive bankruptcy, Linda left Edward. But when she tried to buy a condominium on her own, she could not qualify for a mortgage because of the big credit card debt that showed up on her credit record.

Linda's efforts to free herself from the effects of Edward's overspending began by getting copies of her credit reports from all three major credit reporting agencies. These reports confirmed her worst fears, showing her as being legally responsible for the credit card balance. Linda notified the reporting agencies that she disputed the fact that she was obligated on the account, and the agencies informed the credit card company of Linda's position.

In response to learning that Linda was challenging her responsibility for the debt, the credit card company was required by the federal Fair Credit Reporting Act to conduct an "investigation" regarding the disputed information. The nature and extent of that investigative duty became the focus of Linda's lawsuit under the Act. She filed suit when the company continued to maintain that Linda was responsible for the debt, thereby leaving in place the black cloud over her credit picture.

Linda won her case, with an award of damages for good measure. The credit card company had not satisfied its duty to investigate. After hearing from the credit reporting agencies, the company simply confirmed that the disputed information provided by the agencies matched the account information in its computer system. This cursory review was no "investigation." Federal law required the creditor to look beyond the bare information in its customer information system, such as by consulting underlying documents. In this case, the most important document would have been the credit card application submitted by Edward. As it happened, the company had lost the application, but that did not get it off the hook. Had the company done enough to discover that the key document was missing, it at least could have informed the credit reporting agencies that there was no conclusive proof that Linda was responsible for the credit card debt.

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In San Diego there are many different types of business entities. Our firm of Pinkerton, Doppelt & Associates, LLP recommends using a licensed and professional CPA and you can feel free to e mail our call us if you need a referral to a competent professional at no charge.

The Internal Revenue Service introduced Schedule C-EZ, a simplified expense form, for use by small businesses preparing Form 1040. The IRS recently announced that it will expand the number of small businesses eligible to use the form by 15%, or about 500,000 businesses, beginning with tax year 2004.

The greater availability of Schedule C-EZ will be accomplished by doubling the business expense threshold for businesses that can use the form from $2,500 to $5,000. This change could save as much as five million hours of paperwork for small business taxpayers