San Diego Estate Planning Lawyer Blog

A previous post mentioned that this is the year for billionaires to die without their estate being responsible for any estate taxes. One of this country's billionaires is Donald Bren of the Irvine Company in California. Estate taxes were far from his mind when this week in Orange county, a jury decided the interesting case of whether he owed his biological children by a mistress approximately $130 million in back child support. The causes of action brought by the mistress and the two children, now 22 and 18, were based on fraud and breach of contract on the premise that Bren had not given enough emotional and financial support to the children. At one point Bren was giving each child $18,000 a month. The children claimed that he was required to pay them support according to his "circumstances and station in life," arguing that he should be required to pay them $400,000 per month applied retroactively.

Bren, now 78, has an estimated net worth of $12 billion dollars and is married with a 7 year old child. The jury decided in favor of Bren and ruled that the children were not entitled to additional support. So now Bren's billions are intact and he can plan for how best to leave his billions without paying billions in estate taxes. Next year unless the Legislature acts before the end of the year, the federal estate tax exemption is set to return to a level of $1 million. Millions of Californians will then have estate tax issues just like Donald Bren. There are ways to minimize estate taxes including irrevocable life insurance trusts, gifting, and other advanced estate planning techniques.

If you have questions or want to consult with an experienced estate planning attorney about your estate and how to minimize estate taxes, call us at Roy M. Doppelt & Associates for a free consultation. Also go to our family law website where you can read articles about child support and other family law issues. Consultation for family law are also available.

Remember when hotel magnate Leona Helmsley left $12 million to her dog Trouble? It's happened again! The late Miami heiress Gail Posner who recently died in Miami left $3 million to her dog Conchita and 2 other dogs who will live in her 7 bedroom $8.3 million mansion cared for by housekeepers, bodyguards, and other staff members who themselves were left a total of $26 million. Mrs. Posner's son Bret received a mere $1 million. He has challenged the trust alleging undue influence and fraud on the part of the staff memers and the attorney who drafted the trust.

If you want to provide for your pet after your death, there are several ways you can do it with a lot less money. The most common way is to leave a designated amount to a friend or family member to care for your pet. This would be a non-enforceable bequest so you need to be sure that the person you choose will follow through. You could also leave a monetary gift to a charity that will keep your pet for a fixed fee. Apet trust is another way to provide for a pet and it is enforceable by the court. You leave a certain amount of money or percentage of your estate to fund a pet trust for your pet(s). The trust is enforceable by a person named in the trust or by a person appointed by the probate court, any other person interested in the welfare of animals, or a nonprofit charity who cares for animals. The pet's care is taken care of and after the pet dies, there are remainder beneficiaries who inherit the balance of your estate.

Often clients care as much about their pet as they do about the rest of their personal property. We can draft provisions for your pets in your own revocable living trust or we can create a "stand alone" trust for your pets. Contact us at Roy M. Doppelt & Associates for a complimentary consultation.

Recently Warren Buffett and Bill Gates decided to begin a philanthropic campaign called the Giving Pledge Campaign. Buffet and Gates have each pledged to give half of their wealth to charity and have contacted a number of other billionaires world wide to make a similar pledge.

It is reported that there are approximately 403 billionaires in the United States. At www.givingpledge.org you can see which billionaires have pledged. In San Diego, Irwin and Joan Jacobs have pledged. Other notable billionaries who have agreed to give the majority of their wealth to philanthropic causes or charitable organizations are George Lucas (moviemaker), T. Boone Pickens (energy mogul), Barron Hilton (Hilton Hotels), Ted Turner (TV), and Larry Ellison (founder of Oracle). It is unknown how many billionaires there are world wide but India has the second largest number after the U.S.

You may not be a billionaire who can pledge half your wealth to charity, but many people with normal size estates make charitable donations to their favorite charities. Individuals who not have children or grandchildren frequently leave sizeable donations to charity. If you have considerable wealth, even if not in the millions or billions, you could pledge to leave half of it to charity. There are a number of ways you can do this in your estate plan. You can provide for a certain dollar amount to go to charity. You can provide that a certain percentage of your estate goes to a charity or charities. You can also create a charitable remainder trust, a charitable lead trust or leave an IRA or other asset to charity. Read about these different ways to implement charitable giving on our website and contact us if you want to incorporate these ideas in your estate plan.

We are always learning from celebrities what not to do in estate planning. Business succession planning is so important for individuals who own a business and want that business to continue to operate after their death. Business succession planning can involve important issues such as who will have control of your business when you retire or die? Who will have ownership? It can also involve tax planning to minimize the taxes. Planning in advance can make the transition much easier.

Dale Earnhardt Sr,, famous race car driver who died in a crash at the 2001 Daytona is an example of how poor planning can have disastrous results.

Dale Earnhardt Sr. started Dale Earnhardt Inc., the company that ran his racing team. When Dale Sr. died, he left his business DEI to this third wife Theresa, not the mother of his children. Theresa became the owner of the racing team in which Dale Jr. was the principal driver. An interesting issue developed when Dale Jr. found himself not only not in control of the company but also not even having the rights to his own name. Apparently his father Dale Sr. had filed a trademark for his son's name and Dale Jr. signed a consent to it. When Dale Sr, died, the rights to Dale Jr.'s name went to his estate and then to Theresa. Dale Jr. tried to negotiate with his step mother to gain some control of the company but nothing came of it and in 2007 Dale Jr. resigned to drive for another racing team.

It is hard to imagine that Dale Sr. would have wanted his son, who followed in his footsteps as a race car driver, to be shut out of DEI. Had Dale Sr. planned properly, a plan could have been created to give control of DEI to his son and still left plenty of resources for his wife.

Roy M. Doppelt & Associates can help with planning for the succession of your business as part of an overall estate plan. Read about some of the points to consider in our article on Business Succession Planning and contact us to schedule a free in-office consultation.

For those following the federal estate tax controversy, last month three senators introduced the Responsible Estate Tax Act which if passed will return the federal estate tax exemption to the 2009 $3.5 million level. The current state of the law is that during this year, there is no estate tax at all which means multi million and multi billion dollar estates pass to the beneficiaries free of any federal tax. Without some legislation before the end of the year, the federal estate tax exemption will return to $1 million.

The new bill, if passed, will restore the 2009 exemption of $3.5 million. Estates over $3.5 million will pay federal estate tax. Estates over $3.5 million and under $9 million will be taxed at a 45% rate. Estates between $10 million and $49 million would be taxed at the rate of 50%. Estates over 50 million would pay estate taxes at a rate of 55%. The bill also imposes a 10% surtax on billionaires. (There are approximately 400 billionaires in the United States) It is estimated that passage of the bill would bring at least $264 billion into the economy.

If the federal estate tax issue is not addressed, returning to the $1 million level next year will affect many of our estate planning clients so it is important to keep informed as to the status of this bill. Many clients' estates fall within the $1 million to $3.5 million range. If the tax reverts to $1 million in 2011, additional estate planning may be necessary to avoid estate tax liability. Different types of trusts and other tax saving techniques may become necessary. We will follow the status of legislation and post any developments here.

In past blogs we have discussed the need to have an experienced estate planning lawyer draft your trust. In California, a case has recently been filed against Legal Zoom, an online site that markets wills and trusts without the need to meet with an attorney. The case involves a man with a terminal condition who used Legal Zoom to draft a trust and pour over will. The documents were signed but the trust was never funded because financial institutions that held the man's money refused to recognize the validity of the documents. The man died without getting the trust funded.

It remains to be seen what the outcome of the case will be but it does highlight the importance of getting a lawyer to draft your revocable trust and companion documents. In most cases, a face to face meeting will elicit important facts so that your trust and other documents accurately reflect what you want to happen after your death.

Some circumstances that dictate hiring an attorney to create an estate plan are the following:
1. You are in a second marriage with children of other relationships
2. You own real estate in more than one state.
3. You want to benefit a charity in some way
4. You own a business and want to provide for someone to take over the business after your death
5. You have a taxable estate.
6. You have substantial assets in 401(k)s or IRAs
7. You have a beneficiary who is disabled
8. You have minor children and want to provide for distributions to them at intervals or for specific purposes.
9. Your children have drug or alcohol problems and need a trust that will take that into consideration
10. You want to have someone you can call when you have questions or want to make changes in your documents.

The experienced estate planning lawyers at Roy M. Doppelt & Associates can assist you with your estate plan and will be around when you need to call with a questions or want to amend your documents. Our initial consultation is always complimentary.

Celebrities are always providing estate planning lessons for the rest of us. Gary Coleman who died in Utah in May at age 42 is the latest celebrity whose estate planning was a disaster. There are at least 3 wills, maybe more, that have been found and the fight has already begun between his ex-wife Shannon Price, his estranged parents, and a woman who formerly lived with the actor and was the CEO of his corporation, Anna Gray.

Supposedly there is a will executed in 1999 leaving everything to his manager Dion Mial, a will executed in 2005 leaving everything to Anna Gray ,and a document purporting to be an addendum to a will executed in 2007, one week after he and Shannon Price were married, leaving everything to Price. The document is not witness or notarized. Price and Coleman divorced in 2008 although according to Price, continued to live together in a common law marriage. (Utah is one of a dozen states that recognize common law marriage.)

Friend and co-star Todd Bridges also has said he has a secret will expressing Coleman’s true wishes about his estate and his final wishes. The actor’s estranged parents also claim that since Coleman and Price were divorced, they have the legal rights to his remains. The court in Utah has already scheduled a hearing for July 2 to sort things out and appoint a personal representative of the estate.

This is another example of how important it is to have a comprehensive estate plan in place and constantly update it after marriage, divorce, change in beneficiaries, etc. It also is important to do your estate planning according to the laws in your state. A will that is not notarized or witnessed is not going to hold up in court as a valid testamentary document.

Properly drafted estate planning documents are so important, one wonders why celebrities who have the means to do it correctly, often do not. The experienced estate planning lawyers at Roy M. Doppelt & Associates can help you avoid the disasters common to celebrities and create an estate plan that will not cause difficulties for your loved ones after your death.

Will and trust contests continue to produce interesting stories, whether among the rich or the ordinary. This past February, a judge in Hong Kong ruled that the estate of billionaire Nina Wang will not go to her feng shui consultant but to the charitable foundation she and her husband Teddy created in 1988.

Nina's life and death reads like a soap opera. Nina was born in Shanghai and married her childhood friend Teddy Wang who grew rich owning and operating the Chinachem Group, one of Hong Kong's largest and most powerful companies. Teddy Wang was kidnapped in 1983 and his wife paid a $33 million ransom for his return. He was kidnapped again in 1990 and never found. He was declared dead in 1991 and Nina took over the company. There were numerous court battles over his wills but eventually it was Nina who inherited his estate.

Nina drew up a will in 2002 leaving her multi-billion dollar estate to the Chinachem Foundation she and her husband founded. After her death, another will surfaced, dated 2006 and leaving her estimated $4 - $13 billion estate to her fung shui consultant, reported also to be her lover. "Feng shui" is the ancient Chinese system of aesthetics using laws of Heaven (astronomy) and Earth (geography) to help improve life and create peace and harmony. The court ruled however that the will presented by Tony Chan, the feng shui consultant, had been forged. He was later arrested and charged with forgery.

The law office of Roy M. Doppelt & Associates handles numerous will and trust disputes but
usually not with the drama of the rich and famous. Contact us if you have a will or trust dispute or need assistance with any other aspect of estate planning.

Previous blog posts have discussed the fact that in 2010 there is no federal estate tax imposed on a person's estate, no matter how large the estate. In 2009, the federal estate tax was levied on estates over $3.5 million. In 2010 there is no estate tax because Congress failed to approve the bill to keep the estate tax at the 2009 level with a maximum 45% tax rate.

No one expected that the 74th richest man in the world would die in 2010. Texas gas pipeline tycoon Dan Duncan suddenly died in March at the age of 77 with an estimated $9 billion estate. No one knows the details of his estate plan but his death has caused many to wonder if Congress would now reinstate the 2009 estate tax and make it retroactive to the begining of the year so that the government could receive much needed revenue from his estate, maybe in the billions. Mr. Duncan was a noted philanthropist, so he may have provided for a number of charitable gifts which pass to the beneficiaries free of estate tax.

If Congress fails to act before the end of the year, the estate tax exemption is set to return to $1 million with a maximum tax rate of 50%. Such inaction by Congress will potentially affect many peope who are not billionaires. In California especially, where real property values are high, many upper middle class individuals would be subject to estate tax with estates over $1 million.

Estate planners are watching all of this with interest as it determines the type of trusts that are drafted and the estate planning advice we give to clients. If we can answer any questions for you or review your estate plan to see if it is flexible enough to deal with changes in the estate tax, please contact us.

Recently we had a post on our estate planning blog about electronic wills, now only recognized by the state of Utah. What about electronic marriage?

Two law professors at Michigan State University are advocating e-marriage. Their suggestion arose out of a situation where a Marine Sgt. met a Japanese woman in Japan. She became pregnant and he was sent to Iraq. The two wanted to find a way to get married so they had a proxy marriage (recognized in some states where the couple are not in the same location). Then unfortunately, the Marine was killed in Iraq, causing estate planning issues and immigration problems for his widow and son.

The two law professors propose e-marriage as a convenient and flexible way for couples to marry that are separated by distance. With the help of the Internet couples could get married without being physically present together. There would have to be safeguards against identity fraud and the law professors acknowledge that an e-marriage, depending on state law, may not carry with it the same legal rights as the usual marriage. Obviously many groups see this as an erosion of traditional marriage and would oppose such a plan.

At Pinkerton, Doppelt, & Associates LLP, we handle both estate planning issues and family law. See our family law website for articles about divorce, child support, custody, paternity, pre-nuptial agreements, and other family law issues. Your initial consultation is free for both estate planning and family law.

The first federal trial to determine if the Constitution allows states to ban same sex marriage began this week in the U.S. District court in San Francisco. The trial, which is supposed to last 2-3 weeks, involves a challenge to Proposition 8 which was passed by 52% of the voters in 2008. Prop 8 reinstated the ban on same sex marriages after the California Leglislature had voted to permit them. For a discussion on Prop 8 and same sex marriage, read our article on our family law website.
The plaintiffs, two gay couples, contend that there is no rational basis for limiting marriage to a man and a woman. Opponents, the supporters of Prop 8, are arguing that the voters were within their rights to establish that marriages should be limited to heterosexual couples. Testimony in the first few days has centered around historians who are testifying as to how Prop 8 is part of a long tradition of discriminating against gay couples.

Regardless of the outcome, the case will probably find its way to the United States Supreme Court. The ruling will lay the groundwork for the highest court to tackle the issue of same sex marriage. The Supreme Court has already gotten involved to the extent of ruling that the trial could not be broadcast on U-Tube.

It will be interesting to see what the District Court rules and how soon the U.S. Supreme Case will hear any appeal. It is doubtful there will be any resolution for couples in California any time soon. Same sex couples with the current uncertain status of the law can have unusual estate planning issues, with or without marriage and with or without children. Pinkerton, Doppelt, & Associates LLP has represented same sex couples with family law issues and estate planning issues. Call us if we can help. Your initial office visit is always complimentary.

You may remember that when famous baseball player Ted Williams died, his body was sent to the Alcor Life Extension cryonics company to be kept frozen until such time as medical advances could bring him back to life. Reportedly Williams’ head is being kept frozen separate from the rest of his body.

Alcor Life Extension Foundation and other cryonics companies store a body in liquid nitrogen at a temperature of minus 196 degrees Celcius in order to preserve the cells and DNA until science enables people to reverse their death. Such a procedure costs upwards of $150,000.

In Tampa Florida recently there was a case of first impression dealing with a similar situation. A 48 year old man who was found dead in his apartment had a medical bracelet on with instructions not to embalm him or to perform an autopsy. Since his death was suspicious, the county medical examiner wanted to perform an autopsy but the autopsy was suspended when a call came from a cryonics company, the same company that houses Ted Williams remains, and requested that the body not be autopsied as that would affect the man’s hopes of someday being brought back to life. Both sides went to court and the judge ruled that the autopsy would be performed and then the body would be released for whatever disposition the family chose. The medical examiner did agree however to try to minimize the dissection of the body to aid in the probability that the body could at some point be restored to life.

Unique wishes like those of this individual should definitely be clearly set out in a health care directive. In the case of Ted Williams, family members were in disagreement as to whether this was something the baseball celebrity really wanted. If you have unusual wishes about the disposition of your remains, services, or such things as embalming, cremation, or burial, be sure you have executed an Advance Health Care Directive that sets forth your wishes. If you don’t have an Advance Health Directive and would like one drafted to set forth your wishes, call us at Pinkerton, Doppelt, & Associates, LLP.

Back in October, we reported on the case of Brooke Astor's estate where prosecutors alleged that Brooke Astor's son Anthony Marshall and his lawyer cheated Brooke Astor out of an estimated $60 million by convincing her to change her will when she was suffering from Alzheimer's disease. The two were convicted and have now been sentenced to jail sentences of 1 - 3 years.

The sentences did not answer the question of where the $60 million in assets will ultimately go. The judge in sentencing Marshall commented that he wished he had the power to order a different sentence, that the money all go to charity. It will be the probate court in new York that will answer the question of how much Marshall will receive from his mother's estate.

What the case has done is heighten people's awareness of elder abuse. It is estimated that between one and five million elderly people in the United States are the victims of financial elder abuse. Many cases go unrecognized and unprosecuted. We all need to be on the alert to recognize elder abuse in our aging population and protect against what seems to be a growing trend.

Circumstances of elder abuse can arise through a misuse of a power of attorney, changes to wills or trusts, unauthorized withdrawals from elder's accounts, and many other ways. Contact us at Pinkerton, Doppelt, & Associates LLP if we can help with any elder abuse concerns.

Recently several reports have come out predicting that life expectancy is on the increase. Males born in the 1900's could expect to live into their 60's. A male born in 2005 can expect to live into his late 70's. Mac Arthur Research Network on an Aging Society estimates in a recent report that Americans will live longer in the next 40 years. They estimate that women will live to be 89 - 93 on an average by the year 2050 and men 83 - 86 years. Another study which was published in the medical journal Lancet estimates that more than half of babies born since 2000 can expect to live to be over 100 years old.

What implications will these extra few years mean to our society? Longer lives (and presumably healthier) lives will change the traditional cycle of education, employment, and retirement. There will be more older persons living longer which surely will affect health care, health insurance, and medical providers that specialize in elder care. Older workers may need to stay in the work force longer and plan for retirement a little differently. The outlays which will be necessary for Medicare and Social Security could rise by $3.2 million to $8.3 million by 2050. Maybe people won’t want to retire at age 60 - 65 if they still have another 40 years to live. A postponed retirement may affect the types of investments that should be included in your portfolio. It also could affect rules about distributions from retirement accounts, pension plans, and IRA’s.

For estate plans, a longer life expectancy may lengthen the length of the relationship you have with your estate planning attorney and alter the way estate planning is done to address these challenges. The next few decades will be interesting.

The U.S. House of Representatives will vote perhaps as early as this week on legislation to extend the current estate tax rates permanently. Currently the tax rate is 45% of any estates in excess of $3,500,000. As previously discussed in past blogs, $3,500,000 was the tax exemption for 2009. In 2010 there will be no estate tax at all which means that no one will have to pay estate taxes no matter how large their estate is. In 2011, however, without some new legislation, the estate tax will go back to a rate of 55% on assets in excess of $1,000,000. This makes people a little nervous, especially in San Diego where home prices and values are much higher than elsewhere in the country.

All of this stems from the major tax overhaul enacted by President George W. Bush in 2001. Prior to 2001, the top tax rate on inheritances was 55% on estates in excess of $675,000. The law gradually decreased the tax rate and increased the tax exemption amount to the 2009 figures of 45% on estates over $3,500,000.

The bill in the House was introduced by Representative Earl Pomeroy from North Dakota. The bill would make permanent a 45% tax rate on inherited assets in excess of $3,500,000. It is predicted that the bill will pass in the House but whether it has enough support to pass the Senate is debatable. Many people favor a full and permanent repeal of the death tax. If the Senate does not pass the bill by the end of the year, the federal estate tax is scheduled to die for one year only to reappear on estates in excess of $1,000,000 in 2010.

The death tax affects a surprisingly small number of Americans. According to the IRS, in 2009 less than one-quarter of 1% had estates big enough to pay estate taxes. One of the reasons is undoubtedly that the wealthy take advantage of advanced estate planning techniques to reduce or eliminate estate taxes. Even the middle-of-the-road estate can benefit from some sort of estate planning. Contact us to see how. Look for furture blog postings on whether this new legislation becomes law.

In the Estate Planning area, we frequently see estates remaining open for years or litigation developing long after a person's death. Do you remember "The Hobbit" written by J.R.R. Tolkien? For many of us baby boomers, it was a favorite story, one of the first “fantasy” novels which have become so popular. First published in 1937, it is now scheduled to be released in theaters as two prequels to the “Lord of the Rings.” The “Lord of the Rings” trilogy grossed about $2.9 billion world wide plus another $3 billion from DVD, TV licensing, and merchandise.

The movie based on The Hobbit was a long time coming because the movie studio who owned the rights to the story was sued by the heirs of J.R.R. Tolkien who died in 1973. Mr. Tolkien had sold the movie rights in 1969 for $250,000. The studio was to pay his heirs a percentage of the gross receipts after certain production and advertising expenses were deducted. The two children of Mr. Tolkien claimed that the accountancy methods used to apply this formula were improper so as to reduce the payments to them. Their initial demand in the lawsuit was in excess of $150 million, which increased as the case progressed because discovery, according to the estate’s lawyers, revealed additional impropriety.

The case was scheduled to go to trial in October and has apparently been settled. The settlement amount is confidential although some sources claim it is well over $100 million. The settlement paves the way for the movie studio New Line Cinema, a subsidiary of Warner Brothers, to move forward with the Hobbit movies.

In San Diego, there are many people wondering in this economy, when they can retire, when to take social security, how much they need to retire, etc. Social security has predicted that many Americans will live into their 90's in the years to come and the cost of living will continue to increase so these aspects of retirement also have to be considered.

When to take social security? Although the normal age is 66 years, you can take benefits as early as 62, but your monthly benefit will be reduced. Social security has a table to determine how much it will be reduced. If you take social security early and still continue to work, your benefit will also be reduced for every dollar you earn over $14,160. See the SSA website for a chart on the amount of reduction.

If can be difficult to calculate how much you need to have saved to start retirement. Many people by delaying retirement just for a year or two can increase their annual retirement income by 9 or 10%. There are many on line sites where you can calculate how much you need for retirement. One is on Money Magazine. Another is offered by T. Rowe Price and there are many others. Make sure when you input information, consider that most peple will need at least 70% of their pre-retirement income after they retire. Be sure to add in all sources of income such as a part time job or a second career. Also figure in your projected social security benefits at retirement age.

Health care is also a retirement consideration. At age 65 you qualify for Medicare but many people also purchase a Medigap policy to supplement Medicare. A great guide to most of these issues can be found on the CNN Money site, including a section on estate planning.

The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can help you with the estate planning aspect of retirement planning. We have helped many people facing retirement create an estate plan and the documents they need to feel secure about their later years.

Recently you may have heard about the conviction of Anthony Marshall, son of New York philanthropist and socialite Brooke Astor. Tony Marshall, the only son of Brooke Astor, was convicted of 14 counts of grand theft and larceny for allegedly stealing millions from his mother's estate while she was suffering from Alzheimer's disease. The lawyer who prepared an amendment to Mrs. Astor's will was also convicted on charges of fraud and conspiracy and one count of forging Mrs. Astor's name to the amendment which changed the distribution of her estate. The amendment was made when Mrs. Astor was almost 102.

Now controversy will shift to what will be done with Mrs. Astor's estimated $180 million dollar estate. Some people speculate that the conviction might cost the grandsons of Mrs. Astor, Phillip Marshall and his twin brother Alexander, about $10 million each, a fact apparently not known to Phillip when he started a guardianship proceeding in 2006. Phillip petitioned the Probate Court to appoint a guardian for his grandmother, claiming that his father Tony was allowing her to live in squalor, telling her she had no money left, all the while taking millions from her estate. The guardianship proceeding caused prosecutors to begin investigating Tony Marshall which then led to the criminal charges. Phillip Marshall has said he never knew about the inheritance for he and his brother from his father's estate and that it was “not about the money. He wanted to protect his grandmother.”

Hopefully what this case has done in the real world is raise the public's awareness about elder abuse. Elder abuse affects about 2 million Americans over the age of 65. It can be physical abuse such as using force or causing physical injury or it can be neglect. Elder abuse can also be financial abuse where someone wrongfully takes or uses an elder's money or other assets. It can also involve, as in the Astor case, using undue influence of forgery to cause an elder to change a will or a trust. It sounds from the Astor trial testimony that the elder abuse there was both types. If we can help with an elder issue such as one discussed here or any other estate planning issue, call us at Pinkerton, Doppelt, LLP.

Martin Luther King Jr. died in 1968. His wife Coretta Scott King died in 2006 and yet issues are still being disputed over their estates. Two surviving children of Martin Luther King Jr. and Coretta Scott King are fighting over their parents’ estates. Bernice King, who is the administrator of her mother’s estate and her brother Martin Luther King III are suing their brother Dexter King alleging he wrongfully took money from Martin Luther King Jr.’s estate. Dexter King has counter-sued his sister to force her to turn over personal papers and love letters from Coretta Scott King’s estate.

A judge in Atlanta has ordered the personal property in dispute turned over to the Court until the issues can be resolved. The Judge has also order the three children to meet and try to mediate their differences.

Celebrities are no different than their non-famous counterparts when it comes to bickering over the administration of an estate. The probate court will treat them no differently. The only difference may be that they have to do their bickering in public as well as in the court room.

At Pinkerton, Doppelt, & Associates, LLP we handle many cases in which the dispute turns into litigation. Read more about trust and estate litigation here on our website. If you need our legal counsel for litigation or any other estate planning issue, we would be happy to meet with you. The initial phone or office consultation is always free.

ER’s final season and the recent premiere of Grey’s Anatomy were emotional reminders about the importance of organ donation. Family members in both series had to make hard decisions about whether to make organ donations. If you feel strongly about organ donation, one way or the other, it is important to let your family and friends know how you feel. Not only that but you should put your feelings in writing so that family and loved ones know how to carry out your wishes.

In California you can spell out your wishes in an Advance Health Care Directive. You can state whether you want organ donation, whether you don’t, and if you do, what organs and for what purposes. You can specify that you only want to donate organs for transplant or also for education or research. Another way to make organ donation possible is to put a sticker on your driver’s license. In California you can also sign up online with Donate Life California, a nonprofit organ and tissue donor registry. Registration with this entity could speed up the donation process if family members could not locate your advance health care directive.

Statistics show that the need for organs is growing but the amount of organs available for donation is not keeping up with the need. Specifying your feelings about organ donation is just one piece of estate planning. Your family and friends also need to know how you feel about end of life issues and health care, how you want your assets to be distributed upon your death, and who you want to distribute your estate. Putting your wishes down in writing to guide your family and loved ones is the best gift you can give them. Contact our firm if we can help with putting these important decisions down in the appropriate estate plan to meet your goals and specify your wishes.

Newspapers and magazines are already commenting that Michael Jackson’s estate will be a real nightmare. No one seems to know at this point whether Jackson had a will or a trust. Some people think there is no way he would have failed to provide for his children. In the absence of a will or a trust, his children would inherit the estate equally.

Whether Jackson created an estate plan or not, his estate will have to be settled, either in the probate court, or through trust administration. There are many creditors already lining up to be included. Although Jackson sold millions of records, he reportedly was in serious debt, perhaps as much as $400 million.

One of the assets in his estate that is going to be fascinating is the publishing rights Jackson had to millions of songs. Jackson outbid Sir Paul McCartney for a 50% interest in a music publishing catalog that includes rights to the Beatles hits as well as publishing rights to other hits by major artists, Jackson apparently paid $48 million for the rights, now estimated to be worth $500 million.

Interestingly, since Jackson died in 2009, his estate will have less estate taxes to pay than had he died last year. In 2008, the federal estate tax level for a single person was $2 million. In 2009, it is $3.5 million. However in 2010, the estate tax is scheduled to disappear entirely. For most Americans, it doesn’t matter a great deal, but think of the savings for the rich and famous by dying in 2010!

Wouldn't it be nice for your heirs to conintue to receive money from your estate long after you are gone? A recent article in Forbes Magazine listed the top celebrities whose estates continue to make money long after their death.

Not surprisingly, Evis Presley comes out on top, with income of $52 million in 2008. Some stars that are alive don't make that much in a year. It is not known exactly how much of that flows into his estate because various entities own interests in the income stream.

Second on the list is Charles Schultz, of "Peanuts" fame whose estate gets a big chunk of the syndicatication and merchandise fees generated by the comic strip.

Also on the list was Australian actor Heath Ledger whose estate made $20 million, mostly from his film The Dark Knight and merchandise based on the movie.

Paul Newman also made the list this year with $5 million. Celebrities who have made the list for many years include Marilyn Monroe, Johnny Cash, James Dean, Beatle George Harrison, and Marlon Brando.

At Pinkerton, Doppelt, & Associates, LLP, we don't handle any celebrity's estates, but we do help ordinary people create estate plans that will achieve their goals for distribution to beneficiaries after their death. If we can help you create an estate plan to fit your needs, call us for a complimentary consultation.

Most people in our high tech society have online accounts such as ebay, Pay Pal, Facebook, Linked in, etc. not to mention their online banking accounts, brokerage accounts, and others with passwords. Some people have photographs and documents stored in their computer and have passwords to get into their computer. What happens when someone dies and no one knows the passwords?

If you bank online or you conduct business on line, your family or your executor or trustee may need to access those accounts to close them, transfer funds, or conduct business. You may also want them to respond to emails, retrieve photos, or post a final blog if you have one.

Accessing online accounts can be difficult. Google for example requires proof of death and will provide access only to an executor or trustee. Facebook won’t provide access at all. Banking institutions and investment companies all have their own rules and regulations for access.

An innovative service called Legacy Locker has a new service to manage your list of online accounts and passwords. Customers choose a beneficiary who is entrusted with the digital assets, whether they are photos, emails, cash in Pay Pal, etc. Legacy Locker allows a customer to choose who should be notified of their death. After receiving verification of a customer’s death, Legacy Locker releases the information.

Similar services are VitalLock.com and AssetLock.net which serve as an “electronic safety deposit box” where registered users can store private documents plus passwords, lock combinations, and other private information

These online services of course charge for their services. It is a good idea whether you pay for such a service or keep the information in your safety deposit box to have someone know the passwords and assets you may have in your computer. What’s not a good idea is to leave the information written down on a pad in your desk drawer or worse yet, in your computer.

In the category of “stranger than fiction,” a lawsuit has been filed in Arizona by a man who was cut out of his mother’s will. The problem is that she is not dead yet. Here in the San Dieigo Probate Court, will contests are filed but after the death of the testator (the individual who made a will before their death.)

The lawsuit filed by Robert Jaeger seeks $1 million in punitive and compensatory damages from his brothers and sisters on the basis that they interfered with an expected inheritance by persuading his mother to cut him out of her will. Jaeger claims that he took care of his mother for seven years and in return she promised to leave him her house when she died. His mother changed her will to leave her estate to her other children instead. The mother, Patricia English, says that her son was unemployed, spent her money, failed to find work, and became more and more demanding. In any case, she says, she had the right to decide who should inherit her house when she died. The siblings are fighting over English’s house which has $130,000 equity. She has no other assets.

In Arizona as in California, there is no cause of action for interfering with an expected inheritance. Only Maine and Florida have such causes of action while the person who executed the will is still alive. The court in Arizona has ruled however that the suit can proceed.

Mary Jo Quinn, director of the San Francisco Probate Department has said she has never heard of siblings squabbling in the probate court while the parent is still alive and capable. “Anybody can sue anybody,”she said, “but the trick is they have to prove it.”

Stay tuned.

Seniors in San Diego as in other cities across California have many issues that are unique to them: Elder abuse, Medi-Cal planning and eligibility, social security, health care directives and powers of attorney, rights as a grandparent, and various estate planning issues.

There is a great publication published by the California State Bar that will be coming out in May. The guide called Seniors and the Law: A Guide for Maturing Californians is a comprehensive publication which addresses laws and legal issues relating to seniors.

The publication was first printed in 2003 but has been updated for the estimated 5.5 million residents of California who are over 60.

To order a copy in English or Spanish, you can email the California State Bar at seniors@calbar.ca.gov. Orders will be shipped in May.

Have you ever wondered whether someone who murders another person can inherit from their estate? In years past, there have been several California cases where children have murdered their parents, sometimes for money, as was alleged in the famous Menendez case in Los Angeles. Two brothers, Eric and Lyle Menendez, were tried and convicted of murdering their parents in 1989 to inherit what they thought was a $14 million estate. As it turned out, after taxes, loans, and costs of defense, they each would have inherited only about $ 2 million each. They were prevented from inheriting their parents' estate.

The California Probate Code Section 250 has a section that provides that a person who “feloniously and intentionally kills the decedent” is not entitled to “any property, interest, or benefit under a will of the decedent or a trust...” This would also include life insurance proceeds or assets left to the killer as a designated beneficiary. You may remember Scott Peterson who was convicted of killing his wife. He was prevented from receiving benefits from his wife’s insurance policy.

All states in this country have similar laws to prevent someone who kills another from inheriting from the victim of their crime. In addition many states have adopted laws to make it difficult for convicted killers to sell their story and keep the money for themselves. These so-called “Son of Sam” laws came from the case where serial killer David Berkowitz, nicknamed the Son of Sam, was planning to profit from the sale of his story. California passed a “Son of Sam” law in 1986 prohibiting felons from profiting from their crimes. This law was struck down in 2002 as being unconstitutional. Today “Son of Sam” laws are sometimes put into plea bargains to provide that any profits from book deal or movies will go to the U. S. Treasury. Another remedy for victims is that they can sue their perpetrators in civil court, as in the O.J.Simpson case, and obtain a judgment which would be satisfied by book and movie profits.

Some people need extra time to file a personal tax return or an estate tax return. On your personal income taxes, you can apply for an automatic extension to file but it doesn't extend the time to pay. You will have to pay a .5% per month penalty for late payment.

With the payment of estate taxes, you can also apply to receive a 6 month extension. The extension provided for in IRS Form 4768 is automatic. You will automatically receive an extension to file for 6 months however be aware that an extension of time to file is not an extension of time to pay the taxes. An extension of time to pay is discretionary.

One executor and trustee of an estate found this out the hard way. In a court case entitled Baccei v. United States, a trustee of a revocable living trust hired an accountant to prepare the Federal estate tax return. The accountant filed Form 4768 requesting a 6 month extension of time to file the return. Part of the form contains a section for an explanation as to why the estate needs more time to pay the tax and the number of months requested, up to 12 months. The accountant did not fill out that part of the form. Within 6 months, the accountant filed the return and paid the estate tax. The IRS then assessed a late penalty on the estate tax paid which had been approximately $1 ½ million. The Trustee appealed.

The Court which heard the matter held that the estate had not requested an extension to pay, only to file, and therefore the late penalty was proper. The two extensions found in Form 4768 are separate extensions and have to be separately requested.

Filing and paying tax returns for an estate is one of the jobs of the executor of a will or the trustee of a trust. If you are the executor of an estate or the trustee of a trust, these are part of your fiduciary duties. Our office handles numerous probates and trust administrations in which we assist executors or trustees with these types of duties. If we can be of assistance, please contact us.

As San Diego estate planning attorneys, we at Pinkerton, Doppelt, & Associates, LLP, have been following the story of Heath Ledger as it related to his estate plan. You may recall that he had a will leaving his estate to his parents and siblings and then later had a daughter Matilda. His family decided that even though the will made no mention of children, they would give his entire estate, estimated to be about $20 million, to Matilda. Now another interesting aspect:

At the recent Academy Awards, Heath Ledger posthumously received an Oscar for Best Supporting Actor for his role in the Dark Knight. There was some controversy before the Awards as to who would become “Oscar’s” owner. The director of the academy, Bruce Davis, said it was complicated because there was the issue of who would accept the award and then who would keep the statute. According to the Academy’s tradition, when an award is given posthumously it usually goes to the spouse or to the oldest child if there is not spouse. Health Ledger wasn’t married and his daughter is only 3 years old. Being 3, Matilda would not be able to sign the “winner’s agreement” which is a contract between the Academy and the winner that the winner will not sell the Oscar without first offering it back to the Academy for $1.00. The whole issue was resolved by deciding to give the statue to Matilda but her mother Michelle Williams will be the legal custodian. When Matilda turns 18, she can sign the agreement on her own behalf and then she will be legally bound not to sell the statue.

In December 2008, Peter Falk’s daughter petitioned the court in Los Angeles county to become the conservator of her father. Falk, noted for his role of Columbo on TV, has apparently been diagnosed with Alzheimer’s disease and dementia. His daughter Catherine claims her father requires full time custodial care for his health and safety and is unable to take care of his finances. The Los Angeles court appointed an attorney to evaluate Falk who has filed a report saying there is no grounds for a conservatorship. Falk’s wife of 32 years also opposes the conservatorship.

Conservatorships are probate proceedings where a judge appoints a responsible person called a conservator to care for another adult who cannot care for himself or herself or handle his or her finances. Any person who wants to be a conservator can petition the court to become the conservator. Usually it is the individual’s spouse or other relative although it can be a friend or even a state or local agency. The court will not grant a petition for conservatorship if there are other ways to meet an individual’s needs such as with a durable power of attorney, a spouse that can handle the care and finances, or a revocable living trust in place.

It will be interesting to see what the L.A. probate court does in the case of Peter Falk. Another hearing on the matter will be held soon. If you have questions about conservatorships or how to avoid them, call the experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation.

If you have a family member suffering with a form of dementia or Alzheimer's disease, you probably worry about them wandering away. The Alzheimer's Association estimates that 60% of dementia patients will wander at some point in their life. A new law is being proposed in California to institute an alert, similar to the Amber Alert, when seniors with dementia go missing.

The program is called a Silver Alert, modeled after the Amber Alert system to locate missing children. Last year the U.S. House of Representqtives passed the National Silver Alert Act to establish a formal public notification when a senior citizen is missing, however the Senate failed to approve a similar measure.

In spite of the lack of federal legislation, about a dozen states have adopted Silver Alert Acts. Florida, which has the largest population of senior citizens, adopted the plan in October 2008 and had success in finding all the seniors who went missing during the rest of 2008.

In California, a bill introduced by Senators Alquist and Correa, would amend the Emergency Services section of the Government Code to provide that law enforcement agencies that are informed of a missing person 65 years if age or older with an impaired mental condition implement public alert procedures. Visiting Angels, an organization that provides in-home care to seniors across the country, as well as other organizations that service seniors, are urging the public to contact their senators to encourage the passing of the bill. Having such a system will give families and caregivers of seniors peace of mind that if their loved one wanders away, the public will be on the lookout for them.

Last week the Wall Street Journal reported that President Obama wants to freeze the current estate tax level to $3.5 million which is the estate tax exemption amount for 2009. Currently only estates with more than $3.5 million ($7 million for couples) have to pay estate tax. Obama intends to set forth his estate tax proposal in his budget next week. If the legislation is passed by Congress it will mean that the estate tax which was set to expire in 2010 would remain at $3.5 million.

The estate tax was enacted in the early twentieth century as a levy on wealth and inherited assets. It was later modified to provide that one spouse could leave an estate of any amount to the other spouse without any tax. In 2001 under President George W. Bush, Congress approved a gradual increase in the amount of the estate tax exemption with a total repeal in 2010, only to have the estate tax return in 2011 with an exemption amount of $1 million.

With the estate tax level set a $3.5 level, it is estimated that less than 2% of all deaths in this country will result in the payment of estate taxes. The vast majority of us do not have to worry about our heirs and beneficiaries having to pay estate taxes. That does not mean however that we don’t need estate planning. Even if taxes are not an issue, most people need to create a revocable living trust to avoid probate and insure that their estate is distributed to their beneficiaries on the terms they specify. If we can help with your estate plan, call us or email us at Pinkerton, Doppelt, & Associates, LLP.

The holiday season in San Diego has many people going to the local malls and retail stores. Identity theft is on the rise and occurs more frequently over the holidays. Identity theft occurs when someone uses your name, social security number or other personal information to commit fraud. It is estimated by the Federal Trade Commission that as many as 9 million Americans have their identity stolen each year. The San Diego based Identity Theft Resource Center estimates 15 million Americans have their identity stolen each year and California is one of the top states for identity theft. Identity theft is committed in a variety of ways such as stealing your purse or wallet, going through your trash, phishing, skimming, or using false pretenses to obtain your personal information.

Here are some signs that you might be at risk to have your identity stolen:

1. You carry your social security card in your purse or wallet.
2. You carry all your credit cards in your purse or wallet, even ones you don’t regularly use.
3. You throw away banking statements, credit card statements, or offers for credit cards without shredding them.
4. You have your social security number written down in your checkbook or it is on a health care insurance card you carry with you.
5. If people ask you for your social security number, you always provide it without protest or inquiry.
6. You have an unlocked unsecure mailbox.
7. You give out personal information over the phone.
8. You haven’t reviewed your credit report recently.

Identity theft can cost you time and money and destroy your credit. If your will or trust or other estate planning documents are easily accessible to strangers, you also may be vulnerable as they often contain social security numbers, bank account information, etc. You may want to invest in a shredder to destroy personal information. Also consider buying a safe or locked box to keep your important documents in, however make sure your loved ones know where the key is so that they can easily access powers of attorneys if you become incapacitated.

According to the Alzheimer’s Association, there are an estimated 5 million Americans suffering from Alzheimer’s disease. Fortunately, San Diego has a lot of resources for families living with the disease. The George G. Glenner Alzheimer’s Family Centers is one resource that helps families with adult day care, respite programs, and support groups. The Southern California Caregiver Resource Cener also provides assistance in the form of support groups, seminars, respite care, etc. Information on geriatric care managers is available through the National Association of Professional Geriatric Care Manager’s Association.

Alzeimer’s eventually results in disorientation, memory loss, cognitive dysfunction, and inability to take care of oneself and one’s finances. Planning ahead can be vital for family members caring for the Alzheimer patient. Once the individual loses the capacity to make financial decisions, it is too late to execute important documents like powers of attorney and wills or trusts. All such documents require that a person have the ability to understand what they are signing and the legal effect of signing the document. If a person becomes incapacitated before someone can be named to make important decisions, the only alternative may be a conservatorship which is costly, requires court approval, and takes time.

If you are coping with a person who has Alzheimer’s or any other type of dementia, take advantage of all the resources available. Contact us at Pinkerton, Doppelt, & Associates, LLP if we can help with powers of attorney or other legal documents to enable other individuals to take over health care and financial decisions when the person becomes unable to do it personally.

If you live in San Diego, there is a lot of free information available to you on a variety of legal issues. Here are some “clicks’ that may answer many questions you have:

1. Our website at Pinkerton, Doppelt, & Associates, LLP has many articles in the area of estate planning and divorce. Our estate planning blog has current postings as well as archived postings going back to 2002.

2. The San Diego County Clerk/Recorder's office has information on its website about recording documents and you can also download samples of commonly used forms such as affidavits of death, grant deeds, quitclaim deeds, property tax exemption forms, and preliminary change of ownership forms. You can access information about your property tax bill or download an application to lower your propery taxes. You can also check the Grantor/Grantee index online for deeds and other recorded documents and order copies on line or pick them up at one of the offices in Kearney Mesa, San Marcos, downtown, Chula Vista, or El Cajon.

3. The California Courts Self-Help Center has information about how to find lawyer referral services, where all the courts are located and their calendars, and frequently asked questions about a variety of topics. There is information about small claims court, conservatorships, elder abuse, landlord/tenant issues, divorce, and traffic tickets. You can even download the Judicial Council legal forms and get information on how to fill them out.

4. At the California State Bar website you can find a lawyer, look up a specific lawyer’s disciplinary record, and get basic information about a number of legal topics. Consumer pamphlets are available on all sorts of topics such as estate planning, probate, small claims court, getting arrested, minors and the law, seniors and the law, and divorce and child custody.

If you need information on estate planning issues, remember Pinkerton, Doppelt, & Associates, LLP offers a free in-house consultation. E mail us or call us with a question or to set an appointment.

Most counties in California including San Diego have suspended the issuance of marriage licenses for same sex couples after California voters passed Proposition 8 on Tuesday. Proposition 8 amends the California constitution to limit marriage to a union between a man and a woman.

Back in May of this year, the California Supreme Court ruled that such a ban was unconstitutional. Approximately 18,000 marriages have taken place between June when the decision became final through November 4. What happens to the validity of those marriages? California Attorney General Jerry Brown has said that since the amendment will not be retroactive, those marriages will be valid. He also has indicated the State will defend the validity of those marriages in court if they are challenged.

Expect there to be legal challenges to the Proposition. Attorney Gloria Allred, who filed the original suit that resulted in the Supreme Court ruling, has in fact already filed a lawsuit on the basis that the amendment authorized by the passage of Prop 8 is unconstitutional. A coalition of gay rights advocacy groups and the American Civil Liberties Union have also petitioned the California Supreme Court. Some pundits believe the issue may go all the way to the U.S. Supreme Court.

Regardless of the legal wrangling which will continue, same sex couples should continue to make estate planning a priority so that if they become disabled or pass away, their wishes will be honored. There also may be some potential issues that arise in the interim if a same sex spouse passes away and either has no will or has a will or trust leaving assets to their spouse.

No doubt family law issues will also develop as the courts sort out the legal ramifications of the passage of Prop 8. Same sex couples can continue to register as domestic partners to receive some benefits but there are a lot of protections granted to heterosexual couples under federal law that remain in question for same sex couples.

If you are a same sex couple needing more information on estate planning or family law issues, contact us at Pinkerton, Doppelt, & Associates, LLP for a free confidential consultation.

Pinkerton, Doppelt & Associates, LLP has been a member of the San Diego Better Business Bureau since 2001. Our practice is in the areas of estate planning (trusts, wills, probate, trust administration, conservatorships, guardianships, and Medi-Cal planning) and family law (divorce, adoptions, child custody, child support, and pre-nuptial agreements). Our firm has been assisting San Diego families for over 10 years.

Recently the BBB revised the rating system to use a scale of A+ to F to rate businesses. We are pleased that our firm was given an A+ rating as of October 29, 2008.

16 Factors went into the A+ rating, using objective information that is obtained, verified, and evaluated by the BBB. Some of the important factors the BBB considers are:

• the length of time in business
• required licensing
• the number and nature of complaints
• whether the business responded to the complaint and whether it was resolved in a timely and good faith manner

You can view the other factors and the entire report on Pinkerton, Doppelt, & Associates, LLP at the BBB website.

Contact us by phone or e mail with your estate planning or family law questions.

At Pinkerton, Doppelt, & Associates, LLP, we want to make sure our clients and other seniors in San Diego are aware of matters important to them. Medicare is the nation’s largest health care plan covering nearly 40 million Americans. From November 15 until the end of the year is the Annual Election Period (AEP). Those eligible for Medicare or those already enrolled can change their enrollment in or out of Medicare Part D and Part C.

If you currently are on Medicare you know that there are four parts. Most people with Medicare have Part A which is basically hopsital coverage and Part B which covers doctors and oher practicioners. Part C is the Medicare Advantage Plans under which Medicare pays a private insurance company to administer your Medicare benefits. Part D is the prescription drug coverage.

Many people will receive information from the Advantage companies before November 15 advising them of any intended changes to existing plans in 2009. This may be called an Annual Notice of Change. If you receive information that your plan is changing, you should review it carefully in order to make an intelligent decision on whether to enroll or remain in the Medicare Advantage Plans. At the Medicare website you can read about the various plans and the step by step process of the decision making in the Medicare Handbook for 2009. National Care Planning Council also has information on the Medicare approved advantage plans in California.

San Diego is home to many retirees and others who love to travel. The U.S. Dept. of State has useful information about traveling abroad. At their website you can access information about passports, registering your travel abroad, taking medicines on your trip, customs and import information, and immunizations required for various areas.

You can also check the website for what travel warning and alerts are in effect for a specific country. A Travel Warning is a warning against travel to certain countries where a condition may make the country dangerous or unstable. Currently, some of the countries listed with Travel Warnings are Pakistan, Iran, Iraq, Afghanistan, Yemen, Colombia, Nepal, and Somalia.

Travel Alerts are issued for usually short term conditions such as a natural disaster, a coup, or acts of terrorism. Countries under a Travel Alert at this time are Mexico, China, Comoros, and the Arabian Peninsula.

Before you take a trip abroad it is also a good idea to make sure your estate planning documents are up to date. If you need a will or a trust or want to make changes to your existing documents, don’t wait until the last minute to contact a lawyer. If you need assistance, contact us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation.

San Diego is 5th on a list of cities with the biggest decline in home values, behind Las Vegas, Miami, Phoenix, and Los Angeles. The median price of a home in San Diego this month is $380,000 down 20% from a year ago. Hit hard by the increase in foreclosures are the neighborhoods of City Heights, Chula Vista, Encanto, Oceanside, Spring Valley, and Escondido.

If you believe the value of your property has fallen below its assessed value, you can file an Application for Changed Assessment with the Clerk of the Board of Supervisors for San Diego County. There are many companies sending mailers to homeowners offering to do this for a fee, often as much as $300. You can of course use these services if you choose, but it costs nothing to do it yourself.

Download the application and file it as soon as possible but no later than December 1, 2008. You should include with the application supporting documentation such as an appraisal, comparable sales in your neighborhood, or other information to help determine the value of your property. Under California law, Prop 8 passed in 1978, a temporary reduction in asssessed value can be made whenever the market value falls below the assessed value. The assessor's office will re-evaluate the reduction yearly.

Vice Presidential candidate Sarah Palin’s 5 month old son who has Down Syndrome has caused an increase in public awareness about children with special needs. Special needs children are those that need extra care whether because of a developmental disability, autism, cerebral palsy, mental retardation, or other physical or mental condition. Many parents in San Diego County have children with special needs and know all too well about the extra care they require, the government benefits they rely on, and the financial challenges they face.

Many families with special needs children need to rely on Medi-Cal or Social Security to help with the high cost of health care. This financial support can continue throughout the child’s life. Parents and grandparents of special needs children and adults may want to provide for their disabled loved ones in their will or trust but they do not want to jeopardize the individual’s eligibility for public benefits. A Supplemental Needs Trust is the answer.

A Supplemental Needs Trust (often called a Special Needs Trust) enable a person with a physical or mental disability to have assets held in a trust and those assets will not be considered countable assets for purposes of qualifying for certain government benefits. Supplemental needs that can be paid for by the trust may be such items as special medical equipment, dental needs, eyeglasses, recreation, entertainment, transporation, computer equipment, or special dietary needs.

Parents or other family members of disabled individuals who want to provide for a disabled beneficiary can establish a supplemental needs trust as part of their own estate plan and the trust will be established upon their death.

For more information on special needs trusts, read the article on our website. The law firm of Pinkerton, Doppelt, & Associates, LLP can incorporate a special needs trust into your estate plan or prepare a “stand alone” special needs trust, tailored to fit your concerns about your special needs beneficiaries. Call us or e mail us if we can help.

When someone dies, estate taxes have to be paid if the estate is large enough. Under the current law, the federal estate tax exemption is $2 million. This means that no estate taxes will have to be paid on estates under $2 million and for couples, assets of less than $4 million would be exempt from estate taxes.

The exemption is set to increase to $3.5 million in 2009, disappear entirely in 2010, and revert back to $1 million in 2011.

Now that the Presidential candidates have been narrowed to McCain and Obama, where do they stand on this issue? John McCain is in favor of raising the exemption to $5 million. Senator Obama proposes a $3.5 million exemption. The other difference is that McCain would cut the tax rate from 45% to 15%. Obama is in favor of keeping the tax rate at 45%.

So it does appear that no matter which candidate is elected, the country will continue to see a federal estate tax exemption which will keep the majority of Americans from having to pay estate taxes upon their deaths. It has been estimated that in 2009, only 1 in 600 estates will owe estate taxes.

For couples to both take advantage of the exemption for estate taxes, they need a revocable living trust with appropriate language. There are many other advantages of a trust even if you are not concerned about estate taxes. If you need a trust and corollary documents prepared, contact us at Pinkerton, Doppelt, & Associates, LLP to schedule a free in-house consultation.

Nine months after the death of Heath Ledger, his estate is being given to his 2 year old daughter Matilda. Ledger had a will he signed in 2003 before the birth of his daughter, leaving everything to his family in Australia. The family has decided to give the estimated 16 million estate to his daughter.

Attorneys for Matilda have also filed a lawsuit against ReliaStar Insurance Co. for bad faith for not paying out on a $10 million life insurance policy Ledger took out in June 2007. He died in January 2008 from an overdose of prescription drugs. The insurance company claims they won’t pay the money until they are satisfied that the death was not a suicide. Insurance policies frequently contain clauses which prevent a pay out if the insured commits suicide. It may be an uphill battle for the insurance company since the New York medical examiner ruled the death accidental.

The case of Heath Ledger illustrates the necessity for updating your estate planning documents after major changes in your life, such as the birth of children. Other events that may dictate a review are divorce, death of beneficiaries, trustees, or executors or a major change in your assets such as from an inheritance or a business venture. If you need a review of your estate plan, call us or e mail us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation.

In San Diego we are familiar with Santa Ana conditions and a lengthy fire season from May through October. The communities of Rancho Bernardo, Poway, Rancho Santa Fe, Ramona, and Escondido still have not completely recovered from last year’s Witch Fire. Are you more educated now than you were a year ago about fire and fire readiness?

Here are some useful links:

1. Cal Fire (California Dept. of Forestry and Fire Prevention) has information about fire prevention and current California fires and trouble spots.

2. Firewise has interesting interactive quizzes you can take to see if your home is protected from a fire and test how firewise you are.

3. California Fire Weather is a site that shows information on a daily basis about red flag areas and fire weather watches in California.

4. FEMA (Federal Emergency Management Agency) handles fires and other kinds of emergencies and disasters. Secifically as to fires, there is information on what to do before, during, and after a fire.

In addition to getting your home as fire-safe as possible, you should be sure your estate planning documents are in a safe area. Some people put their documents in a safety deposit box at the bank or in a safe in their home. If you keep your documents in your home you may want to invest in a fireproof safe or fireproof box which are reasonably priced and will give you peace of mind.

San Diego, like many other large cities is on the cutting edge of technology and has a number of sperm banks, egg banks, and cryopreservation companies for storage of reproductive material. With the advent of techniques such as invitro fertilization and cryopreservation of sperm, eggs, and embryos, children may be born many years after the death of a parent raising a variety of legal issues.

A child that is born after the death of one or both parents is referred to as a “posthumous” child. The law in California recognizes children born posthumously by specifically providing in the California Probate Code Section 248 - 249.8 that such children have the same inheritance rights as children born before the death of their parent.

The new reproductive technologies can potentially create a number of other problems. An example is whether a child born from frozen sperm or embryos can qualify for social security benefits. A U.S. Court of Appeals for the Ninth District has said they do get social security benefits. As modern technology evolves, the law is going to have to address these and undoubtedly other issues.

If you have genetic material stored such as sperm or eggs for posthumous reproduction, you should mention this to your estate planning lawyer. The Probate Code requires that the decedent specify that his or her genetic material can be used after death for conception. Issues could also arise later as to whether some assets held in a trust for example, would have to be held back for distributions to posthumous children. If you have any questions about posthumous children or any other estate planning issue, call us or e mail us at Pinkerton, Doppelt, & Associates, LLP.

In San Diego, the San Diego County Bicycle Coalition has many different tips and advice to help riders. There is also a You Tube website which has information from the NHTSA on bicycle safety. At our law firm of Pinkerton, Doppelt & Associates, LLP we advocate bicycle safety. If you are injured in a bicycle accident in San Diego County, please e mail or call our firm for a complimentary consultation.

When a car or truck has a collision with a bicycle, the bicycle rider usually loses, no matter who legally had the right of way. Bicycle riders should take extra care to obey the following safety tips:

Remember: Bikes Are Vehicles, Too

Legally, bicycles traveling on a road are required to be treated in the same way as any other vehicle traveling on the road would be. This means that, as a bicyclist, you must obey the same laws as other drivers do. Do not run red lights, change lanes without signaling, or commit other infractions. If you would not do it in a car, don't do it on a bike.

Wear a Helmet

The easiest way to protect yourself is to always wear a helmet when you ride. Some jurisdictions require all riders to wear helmets, but even where it is not required, wearing an approved helmet can significantly reduce the chance of serious head injuries in the event of an accident.

Be Visible

Because bicycles are so much smaller than cars and trucks, it is important to make sure that others using the road can see you. Make sure that your bicycle has reflectors on the front and back and even on the wheels. When riding at night, wear light-colored clothing and use a light.
Be Aware

The best safety advice is to be aware of the conditions around you and be careful when riding. Always look both ways when entering a street and stay on the correct side of the street when riding. Keep a lookout for drivers who may not be looking out for you. Like other drivers, bike riders should ride defensively.

It can happen in a second!. You click your mouse on a website and all sorts of things can happen. Because of the high tech nature of the internet, you can shop from your home computer in San Diego and purchase a product from anywhere in the U.S., China, Australia, or India any time of the day or night. Not only could you be downloading spyware and viruses into your computer, but you could be committing yourself to a legally binding contract.

A Texas online purchaser used her daughter-in-law's credit card to order some automobile seat covers and have them delivered to the daughter-in-law in Alabama. When they were delivered, it was discovered that the covers were the wrong color. The daughter-in-law sent them back to the company and reversed the charge on her credit card. The company claimed that it never received the seat covers, and eventually sued the purchaser and the daughter-in-law for breach of contract.

The lawsuit against the customers was bad enough but adding to the problem was the fact that the action was filed in a state court in Indiana, far from either of the defendants' homes. The defendants' attempt to avoid having to defend the suit in Indiana failed. The "clickwrap" agreement that the customer had accepted with a click of the mouse when she purchased the items included a requirement that any legal proceeding between the purchaser and seller had to be filed in Indiana and governed by Indiana law.

Most customers only skim the language in a clickwrap agreement, if they read it at all, while looking for the "I Accept" button. However, the agreement, and everything in it, is no less binding because of that. Both the customer and the owner of the card she used were bound to litigate the dispute in Indiana.

"Clickwrap agreements" have been held to be valid so be careful what you agree to online. Read the fine print before hitting the "I Accept" button.

With everything happening in today’s economy, people have many questions about whether their money is safe in such banks as Bank of America, Washington Mutual, Union Bank, and many other banks in San Diego. The recent failures of IndyMac, Freddie Mac, and the insurance giant AIG has caused many bank depositors to ask about the protections of an FDIC insured institution.

The FDIC (Federal Deposit Insurance Corporation) was established 75 years ago. All deposits worth $100,000 or less are automatically insured by the FDIC if the bank in which the funds are deposited are insured with the FDIC. Many retirement accounts such as 401(k)s and IRAs are insured up to $250,000 per person. If you have a joint account with someone else, that account is insured separately from the account you have in your name alone. In addition, trust accounts may be protected up to $100,000 per beneficiary.

The FDIC has nearly $53 billion in funds and in the 75 years since its creation, there has never been a bank depositor lose a penny. You can learn more about bank failures at the FDIC website. How do you know that your bank is an FDIC insured bank? Look for the FDIC symbol posted at the bank or check the FDIC website for a list of insured banks.

In San Diego many people are going “green” - trying to conserve our planet’s resources and natural environment for the next generation. Now there is growing trend toward “green burials” where the body is returned to the earth to decompose. No chemicals are used to embalm the body and it is laid to rest in a shroud or biodegradable casket. The first “green cemetery” in California is in Mill Valley in northern California. At Fernwood Cemetery they use no embalming fluids, only biodegradable caskets, and trees and scrubs as markers. In San Diego county, the funeral services company, Thresholds, in Lakeside, provides in home funerals and ecologically friendly burials.

According to Wikipedia, U. S. cemeteries deposit into the ground 827,00 gallons of embalming fluid, 30 million feet of hardwood, 90,000 tons of steel, 2700 tons of copper and bronze and over 1 million tons of concrete each year. Even cremation, although better for the earth than burial, leaves carbon ash that doesn’t decompose. The “green burial” movement is trying to alleviate this impact on our environment by encouraging burials without embalming, caskets that will disintegrate, and even cemeteries with no marble markers, metal vaults, or lawns that require fertilizer and pesticides.

For more information on “green burials” you can visit the Green Burial Council website. If you need to incorporate “green” provisions into your will or trust, call or e mail us at Pinkerton, Doppelt & Associates, LLP. Our initial in-house consultation is complementary.

The movie The Bucket List recently came out in San Diego on DVD. This movie shows an unlikely pair of cancer patients (Morgan Freeman and Jack Nicholson) who compose a list of things they want to do before they die (places to visit, things they want to accomplish before they “kick the bucket.” ) In the movie, they sky dive, drive racing cars, get tatoos, and visit the Pyramids. You may have things you want to do which are a little less adventurous. Perhaps you have your own Bucket List of things you want to see and do in your lifetime. There are countless places in the world that would be fun to visit. There may even be some places you still haven’t seen in San Diego such as the beautiful beaches in La Jolla, Del Mar, or Solana Beach. Maybe you haven't seen the beautiful view of the city from the Point Loma Lighthouse. There may be countless things you still need to say to the people you love.

While you are composing your own Bucket List, perhaps you should also consider creating an estate plan and setting forth what you want to happen upon your death. Although it may not be as much fun consulting an estate planning lawyer as it is to visit the Taj Mahal or Moonlight Beach, getting an estate plan will give you piece of mind. You can complete the rest of your Bucket List, knowing your affairs are in order and your estate will be distributed according to your wishes.

At Pinkerton, Doppelt, & Associates LLP, we can help you cross off “Create an Estate Plan” from your personal Bucket List. Call us or e mail us for a complimentary consultation.

Now that the California Supreme Court has validated same sex marriages in California, we may see an increase in such couples having children or adopting them.

The Gay Lesbian Times reports that more than half of gay men and 41 percent of lesbians want to have children and an estimated two million gay or lesbian people are interested in adoption. More than 16,000 adopted children are living with lesbian and gay parents in California, the highest number in the country according to a study done by the Williams Institute on Sexual Orientation and Public Policy at UCLA.

If you are a gay or lesbian couple contemplating adoption, Human Rights Campaign Family Project has information on the various types of adoption such as open adoption, private adoption, or international adoption. At the law firm of Pinkerton, Doppelt, & Associates, LLP we can assist you with completing the adoption process. Call us or e mail us for a complimentary consultation about adoption or any family law or estate planning issue.

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.

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.

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.

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.

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.

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.

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.

San Diego has many naturall disasters. There is an official San Diego County website with tips for disaster preparations. One page focuses on preparations for business' and one page focuses on preparations for schools. Our law firm of Pinkerton, Doppelt & Associates, LLP is located in northern San Diego County. Please feel free to call our office or e mail with any questions regarding legal matters.

When a natural or man-made disaster strikes, be it a hurricane affecting an entire region or a gas leak affecting one house, it is only natural and appropriate to think first of the very basics of life: safety, shelter, food, and water. But it also makes sense, in the quiet of normal daily living, to make plans for money matters in the immediate aftermath of a disaster. As the saying goes, the best time to fix a leaky roof is on a sunny day. If you have only minutes to leave your home, advance planning for keeping your head above water financially can pay big dividends.

Here are a few pointers:

* Keep the following items in a place that is easily available to you in an emergency, but not so apparent as to invite theft: forms of identification, such as driver's licenses, insurance cards, Social Security cards, passports, and birth certificates; enough checks and deposit slips to last a month, or at least a checking account number; ATM cards, debit cards, and credit cards; telephone numbers and account numbers for providers of financial services; the key to your safe-deposit box; and some cash.

* Make copies of your most important documents, ideally on disks, and keep the copies well outside of your home area.

* Use a safe-deposit box for items that you are not likely to need in a hurry, such as birth certificates and originals of contracts. Other items can go in a sturdy safe at home.

* In the same waterproof, portable "evacuation bag" in which you can keep medications, first-aid kits, flashlights, and so forth, keep some of the up-to-date financial papers mentioned above. But secure it well, lest you inadvertently provide a treasure trove of your financial information to a thief.

* Choose automated services over dependency on writing and mailing checks and trips to your bank. You can weather a storm financially more easily with direct deposit, automatic bill payments, and Internet banking services.

Vista has some properties which fall into this category. This is not a case from Vista or from the North County Court House. Our law firm of Pinkerton, Doppelt & Associates, LLP has been in business over a decade and would be pleased to offer you a complimentary and confidential consultation either over the phone or by e mail or in person.

Among the kinds of conduct prohibited by the federal Fair Housing Act is the making of any statement with respect to the sale or rental of a dwelling that indicates a preference, limitation, or discrimination based on race, religion, sex, handicap, familial status, or national origin. The most common violators of this law are the actual owners of dwellings or individuals acting as agents for owners. A federal appellate court, however, reinstated a lawsuit brought by the United States against an individual who had spoken neither as an owner nor as an agent for an owner.

The defendant worked as a housing information vendor, compiling information from classifieds and providing assistance to prospective tenants looking for rooms to rent. In the episode that got the attention of the authorities, a deaf man used a relay services operator to call the defendant for assistance. The defendant flatly told the caller that he did not provide assistance to disabled people. When the caller persisted, the defendant responded with profanity and hung up. Similar inquiries from "testers" were met with essentially the same response. In fact, the jury heard "a virtual tsunami of evidence" that the defendant routinely treated disabled people differently from those not disabled, often using profanity to underscore the point.

The court rejected the reasoning that applying the prohibition on discriminatory statements only to owners or their agents would be in keeping with the purposes of the statute. On the contrary, the statute was meant to protect against the "psychic injury" done by discriminatory statements made in connection with the broader housing market, not just statements that directly affect a housing transaction. The limitation argued for by the defendant is not in the statute itself, which broadly refers to "any" discriminatory statement.

As for a First Amendment argument put forward by the defendant, it may be available for some forms of speech, such as a private individual's vocal opposition to having children living on his block. The defendant's speech, however, was commercial in nature, giving it less protection from government regulation.

The below example is not a case from Rancho Santa Fe in San Diego. The State of California sends out notices such as the ones below and these are normally delivered by the United States Postal Service. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist you with your legal matter. Please feel free to contact us by e mail or phone.

Gary bought a house that he and his wife lived in for 26 years. When the couple separated, Gary moved out, but he continued to pay the mortgage for another four years until it was paid off in full. The loan was gone, but not the property taxes--they went unpaid when the mortgage company that had previously been paying them was out of the picture.

The state attempted to notify Gary of the delinquency and of his right to redeem the property. It mailed a certified letter to him at the address of the subject property. Since nobody was home to sign for the letter, it was returned to the state marked "unclaimed." Two years later, and only weeks before the property was sold to pay the taxes, the state published a newspaper notice of public sale of the property. A buyer came forward, and the state sent Gary another certified letter stating that his house would be sold if the taxes were not paid. It, too, was returned unclaimed to the state. Only when the new owner served a notice on Gary's daughter at the house did Gary finally learn about the tax sale, but it was after the fact.

Gary sued the state, arguing that the state had sold his property for taxes without first affording him procedural due process, and the United States Supreme Court agreed with him. The Court did not lay down an ironclad rule on what procedures are to be followed in all cases. It did say that, upon the return of a notice as undeliverable, the government must take additional, reasonable steps to attempt to provide notice before it takes the drastic step of extinguishing someone's interest in his or her property.

While the extent of what is required will vary with the particular circumstances, the Court's comments indicate that it hardly expects the government to put a detective on the case of a "missing" property owner. Open-ended requirements, such as searching a telephone book or other government records, are not required of the government. But it is not too much to ask the government to do, in the Court's words, "a bit more." There were some follow-up options that the state should have explored and used. They include such simple measures as sending a notice by regular mail, for which no signature is required, posting the notice on the front door, or addressing the otherwise undeliverable mail to "occupant." Presumably, even a nonowner occupant would alert the owner of such a notice.

The Court drew an analogy to a state official handing notices meant for delinquent taxpayers to a mail carrier, then watching as they were accidentally dropped down a storm drain. One would expect new notices to be prepared and sent again. Just as it would be unreasonable for the official under those circumstances simply to shrug his shoulders and say "I tried," the state in Gary's case owed him more than inaction when the notices meant for him were returned "unclaimed."

In Escondido, as in the example below, there are many companies which allow their employees to access the internet including Google, Yahoo, MSN and others. Unfortunately, some employees take advantage of this access and access other websites with inappropriate content. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist you with legal issues including legal action such as the one below. Please feel free to e mail or call us for a complimentary consultation.
Taking affirmative action before this occurs is the best policy.

By some accounts, a large majority of employees access the Internet on company computers for personal reasons while at work. The obvious adverse effects of this on productivity are only the tip of the iceberg with regard to the potential headaches that such activities can cause for employers. Personal Internet activity by employees can pose security risks to the company's computer network itself, such as by exposing a network to a computer virus.

Less immediate but just as serious is the threat of legal liability of the employer to injured third parties. Some scenarios are not difficult to imagine. An employee uses his computer as a tool for sexually harassing fellow workers by visiting pornographic websites. Or, an employee embroiled in a bitter domestic dispute uses his office computer to communicate threats to his spouse, and the employer fails to take action.

In a recent case, one such nightmare scenario was all too real for an employer that had to defend itself against the alleged victims of an employee who used a workplace computer for conduct that was criminal, not just indicative of poor judgment. This case may be the first reported decision on the matter of an employer's liability to a third party for having failed to take action to stop an employee from using a company computer in a manner that harmed the third party. It most certainly will not be the last such case.

The case involved an employee who used his company's computer at work to visit pornographic sites, including some relating to child pornography. Over a period of time, a supervisor and some coemployees became aware of this activity and complained to management. Eventually, the offending employee was confronted and was told to stop such use of the computer, but, a few months later, he was again discovered to have accessed pornographic sites.

Eventually, the employee was arrested on child pornography charges, including allegations that he had transmitted nude pictures of his 10-year-old stepdaughter over his office computer to a child pornography site. The employee's wife, who divorced him, sued the employer for failing to investigate and for failing to report the employee's viewing of child pornography. The case was settled, but not until a precedent was set when the lawsuit survived attempts to have it dismissed before trial.

There are limits to what companies can or should do to prevent improper use of company computers, but it is only prudent to take at least some basic measures. It makes sense to have a written e-mail and Internet use policy that clearly informs employees of what, perhaps, they should already know--that the employer has and reserves the right to monitor employees' use of the company's computers and to discipline violators. In addition, there needs to be even-handed enforcement of the policy. Even the best written policy will do little to convince a jury, if it comes to that, that a company has done all it reasonably could have done, if the evidence is that the policy was toothless or rarely enforced.

In San Marcos, there are many business entities which operate out of the owner's residence. This is a very complicated area of the law governed by the IRS and FTB regarding any deductions and also the federal and state laws. The penalties and interest can be substantial and our law firm of Pinkerton, Doppelt & Associates, LLP can refer you to a qualified Certified Public Accountant who can assist you with your tax planning. Please feel free to e mail or call our firm.

To pass the threshold for use of the home business deduction, a taxpayer must satisfy the following two basic sets of requirements. The first set concerns the nature of the business activities, while the second set relates more to the place itself.

First, the use of the business part of the home must be exclusive (with exceptions to be discussed below), regular, and for the business. Second, the business part of the home must be one of the following: the principal place of business--the place where the taxpayer meets or deals with patients, clients, or customers in the normal course of business--or a separate, detached structure used for business.

The exclusive use factor means that the area is used only for business, not for a mixture of business and personal uses. However, the exclusive use requirement need not be met when a part of the home is used for storage of inventory or product samples, or for a day-care facility. When the IRS says that the use of the home must be for a trade or business, it does not mean any activity that makes money for the taxpayer. If you use a computer in your den for day-trading of stocks or online gambling, do not count on taking the deduction. As for what constitutes a "regular" use for business, that essentially means business conducted on a continuing basis, not occasionally. Even if a taxpayer has a place in the home used exclusively for business, the deduction is not available if the business activity is only sporadic.

Continue reading "San Marcos: Qualifying for the Deduction" »

In Scripps Ranch, some home owners are deducting business expenses from their returns for their business use of their home. This is a complicated area of the law and our firm recommends a qualified and licensed Certified Public Accountant. If you have additional legal questions, please feel free to contact our law office of Pinkerton, Doppelt & Associates, LLP by e mail or phone.

The federal income tax deduction for the business use of a home has a good dollars-and-cents upside for those who qualify. Some detailed questions have to be answered correctly to get to that point, however. Not surprisingly, the IRS publication on the subject makes use of a complex flowchart filled with "yes or no" questions to guide taxpayers to a determination of eligibility for the deduction.

Deductible expenses for a business use of the home include items such as the business portion of real estate taxes, deductible mortgage interest, rent, casualty losses, utilities, insurance, depreciation, painting, and repairs. This is not likely to be an all-or-nothing proposition, though. Generally, an expense is fully deductible if it is direct, that is, incurred only for the business part of the home. An indirect expense, incurred for running the home as a whole, is deductible based on the percentage of the home used for business. Any reasonable method for determining that percentage is acceptable, such as dividing the square feet used for business by the total square feet, or dividing the number of rooms devoted to business by the total number of rooms. If an expense is unrelated to the business part of the home, it is not deductible at all.

If the taxpayer's gross income from the business use of the home is lower than the total business expenses, the deduction for certain expenses will be limited. But those expenses that cannot be deducted because of such a limitation can be carried forward for the next year's home business expenses.

In Miramar, as with other neighborhoods of San Diego, fire and smoke are life threatening issues. The San Diego Fire Department has information which is very useful. Many local stores such as the Home Depot have these smoke detectors. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse any particular store. If you need assistance with a legal matter, please feel free to contact our firm by e mail or phone.

If you could pay $10 and, in return, get a guard who would warn your family if your house caught fire, would you? Of course you would. Despite this, most people do not have enough smoke detectors in their homes--detectors that will stand guard over your family's lives 24 hours a day. The evidence shows that using even an inexpensive smoke detector increases your family's chance of surviving a house fire by 50%, making it one of the best investments you can make for your family's safety.

Experts recommend installing smoke detectors, the cheapest of which start at about $10, throughout your house. At a minimum, install one detector for every floor and one outside of each bedroom. Test your smoke alarms once a month, and replace the batteries once a year. Make sure that every member of your family knows (1) what to do when the smoke alarm sounds, and (2) the fire escape route from each room. A little advance planning can help make sure that you and your family have a better chance if a fire should start in the night.

In Rancho Penasquitos, there are many employers who use screening tests for employment. Our law firm of Pinkerton, Doppelt & Associates, LLP does not practice in employment law and can refer you to the San Diego County Bar Association Lawyer Referral Service if you need legal assistance in this area. If you need legal assistance in estate planning or family law, please feel free to contact our firm for a complimentary and confidential consultation either in person, over the phone or by e mail.

It is popular now for employers to use screening tests, often administered on the Internet, to weed out a large portion of applicants for job openings before making the more difficult selections from among those who survive that first cut. Such tests are supposed to measure cognitive ability, personality characteristics, or, in fewer instances, the ability to perform in a simulation of the duties that the job requires. The easily administered and scored screening tests have their appeal, especially if you are charged with filling, say, 10 positions from 100 people who have submitted résumés.

A downside to screening tests is the risk that rejected applicants may persuade a court that the tests essentially were a tool to accomplish prohibited discrimination, even though that may not have been the employer's intent. For example, an employment test that impacts racial minorities or women disproportionately could lead to liability unless the employer can show that the test is sufficiently related to the job and is necessary to the employer's business.

Another potential pitfall stems from the prohibition in the Americans with Disabilities Act (ADA) against medical testing of job applicants. There sometimes is a fine distinction between acceptable personality or psychological tests and prohibited medical tests. The screening of applicants also could run afoul of some state statutes that protect against invasions of privacy.

When individuals adversely affected by a personality test challenged the test in federal litigation under the ADA, an appellate court struck down the test. The test, at least in some of its 502 questions, was a prohibited examination of the applicants' mental health. Its true or false questions went much farther than the acceptable lines of inquiry about matters such as working well in groups or in a fast-paced office. Instead, they ventured into the realm of psychiatric disorders. In this case, a prospective manager of a rent-to-own store could not be required to give true or false answers to statements such as: "I see things or animals or people around me that others do not see"; "At times I have fits of laughing and crying that I cannot control"; or "My soul sometimes leaves my body."

In San Diego, the Padres have been the baseball team for many years. The below example did not occur at a Padres game however it could have and the analogy is the same. If you are injured in a similar manner at a Padres game, please feel free to call our law office of Pinkerton, Doppelt & Associates, LLP or send us an e mail if you prefer. Our firm sponsored the "Fan of the Game" in August,1999 when the Padres played the Brewers.

Practically since our national pastime was in its infancy, operators of baseball stadiums have benefited from a more limited duty to spectators than that which generally applies to businesses that invite the public to come onto their property. Alone among spectator sports, baseball has fans who actively try to catch errant balls, sometimes even risking life and limb to get one. Even if fans would just as soon avoid the batted or thrown balls, the law has assumed that they are aware of the risks from these balls when they take their seats in the stands. The limited duty favoring fans generally is met if seats with protective screening are provided for as many people as normally would want them.

But what of the unsuspecting fan who is clobbered by a foul ball when he has left the sanctuary of his screen-protected seat to get a beer from a vendor? That was the misfortune of a fan who overcame the limited-duty rule when he sued a minor league baseball team for his injuries. A state supreme court ruled that his lawsuit could proceed under ordinary negligence principles.

The limited-duty rule for baseball fans loses its rationale when an injury from a flying ball occurs somewhere other than in the stands. In other areas of a stadium, it is foreseeable and predictable that fans will let down their guard. They may not even be paying attention to the game at such times and places, nor should they have to for their own safety. In the case at hand, when he was struck by the ball, the fan was chatting with other people in the line for concessions, and he could not have seen the batter hit the ball even if he had tried.

The court's concern for fans was heightened by some changes in baseball as a spectator sport. Children and seniors frequently attend professional baseball games. Today's players hit baseballs harder and farther. In keeping with the notion of the sport as multifaceted entertainment, ballparks today present what one observer has called "a sensory overload of distractions." As the court observed, "the beauty of common law is the ability to adapt to the times."

Torrey Pines has many golf courses as do other areas of San Diego County including the Rancho Bernardo Inn located in Rancho Bernardo where our law firm is located. The below example did not occur at any of the Torrey Pines courses. Our firm of Pinkerton, Doppelt & Associates, LLP can assist you with representation in estate planning or family law. Please feel free to e mail or call our firm to set up a complimentary and confidential consultation.

Patrick and his friend Christopher decided to get in some late-afternoon golf on a summer day that had seen periods of turbulent weather, but also some clear skies. As Christopher held the flag for Patrick to putt, a golf course employee sounded a horn to warn of lightning in the area. Patrick putted out to finish the hole. Then the two friends started walking back to the clubhouse, which was about a quarter of a mile away. On their way, they were struck by lightning. Christopher was rendered unconscious for a few moments, but Patrick suffered serious injuries, and he now needs total care.

A negligence suit by Patrick's parents against the golf course owner was unsuccessful. For an owner of property to be liable for injuries to someone on the property, the injury must have been foreseeable. Without that, no duty of care arises in favor of the injured person. Practically everyone knows that lightning is dangerous, but that is quite different from being able to foresee that a particular lightning strike may occur.

Even assuming that the golf course operators owed a duty to Patrick, they did not breach that duty. Patrick and Christopher were given notice that lightning was in the vicinity by means of the horn, which sounded about 10 minutes before the strike that injured Patrick. That would have been enough time to get back to the clubhouse had the boys immediately heeded the warning. Aside from the specific audible warning, a prominent sign at the course warned all golfers that they were playing at their own risk and that when lightning was in the area they were to return to the clubhouse.

The sobering lessons from this case are that golfers themselves bear the most responsibility for protecting themselves from lightning, and that to delay in seeking shelter when lightning is near is to risk a tragic outcome.

In San Ysidro, there are many companies which have a business entity in the United States and also in Mexico. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with all aspects of the formation of your United States Corporation in California in compliance with all requirements from the California Department of Corporations. Please feel free to call or e mail our firm for a free and private consultation in our office.

The bottom line here is that whoever holds a majority of the shares of a corporation has ultimate control over it. Usually it takes a majority of the shares to elect the board of directors, which is charged with making the "big picture" decisions. If a decision is momentous enough for the company's future, such as a change in the articles of incorporation or whether or not to merge with another company, the shareholders usually have a more direct role in that they themselves must approve the decision by a certain margin of votes.

The board elects the officers of the corporation, typically including a president, vice-president, secretary, and treasurer. The officers may or may not be salaried employees or shareholders, and in some cases one person may hold more than one office.

In Oceanside, there are many landlord's and tenant's. In San Diego, there are many insurance companies including Farmers, State Farm, Allstate and others. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse any of these companies and they are listed for illustration purposes only. The California Department of Insurance regulates these insurance agencies and agents. Please e mail us with any estate planning or family law legal inquiry.

Unless there is a contract or lease that provides otherwise, a tenant generally is liable to a landlord for negligently damaging the landlord's property, such as by accidentally starting a fire. But, depending on the language in the landlord's fire insurance policy, the tenant could end up defending himself against a powerful insurance company rather than the landlord.

Many insurance policies provide for subrogation, meaning that if the insurer pays a claim from the landlord for losses due to a negligently started fire, the rights of the landlord against the wrongdoer are transferred to the insurance company. In effect, the insurance company steps into the shoes of the landlord.

This scenario played out in two recent cases that were consolidated because of their similarity. In one case, a person renting a single-family home caused a fire by leaving a flammable item unattended on an electric stove. In the other case, an apartment tenant accidentally started a fire with candles left burning in the bedroom. In both instances, the insurers had subrogation clauses in the policies taken out by the landlords.

Without success, the tenants argued that they should be treated as co-insureds, and therefore they should not be subject to a lawsuit by the insurers. The court ruled that tenants may well have an insurable interest in the leased premises, but they are on their own in terms of liability, unless a contract provides otherwise. The court reasoned that allowing an insurance company to sue a tenant avoids a double recovery by the landlord (from the insurer and the tenant), and it prevents culpable tenants from evading responsibility for their conduct.

In Ramona, there are many different types of business entities. All companies need to take precautions to insure the safety of their customers. Below is a new strategy and technique regarding a medical device. Our law firm of Pinkerton, Doppelt & Associates, LLP do not endorse or support this medical device and do not give medical advice. Our firm does counsel clients as estate planning and family law. Please feel free to e mail or call us for legal advice in this area.

An automated external defibrillator (AED) is used to treat people suffering sudden cardiac arrest whose hearts have an irregular heartbeat. Since September of 2004, when the Federal Food and Drug Administration approved over-the-counter sales of AEDs, it has been possible for individuals and businesses to have AEDs on hand, instead of waiting for them to be brought by medical personnel.

The greater availability of AEDs has been a mixed blessing from a legal standpoint. Businesses most likely to put an AED to use (and what business cannot foresee that a customer might have a heart attack on its premises?) are now in the position of having to decide whether they should have an AED at their facilities. If they do not, there is a risk that a customer who needed an AED could cite the failure as negligence in a lawsuit. That is the "damned if you don't" part, but the rest of the saying may apply as well.

If a business--for example, a fitness center--decides that it would be prudent to have its own AED, it may be commended for preparing for an emergency, but it also may have created a legal headache. Under the right set of facts, the business could be liable for a range of acts or omissions, such as not training its personnel to properly use the AED, or even something as simple as not keeping fresh batteries in the AED. There are already lawsuits in which such allegations have been made, and court cases from the period before over-the-counter sales began suggest that businesses can be held liable if the AED is not kept in good working order or if the use (or non-use) of the AED is especially negligent.

Businesses with AEDs on premises should think in terms of having a comprehensive AED program, not just the piece of equipment. With a view toward quick and effective use of the AED, the program should include:

* good means of communication about emergencies requiring an AED;

* training of workers in the use of the AED;

* procedures for regular checking and maintenance of the AED, and;

* storage of the AED in an accessible location, identified by clear signs.

In Otay Mesa, there are many companies which routinely need to verify social security numbers for employment. Our law firm of Pinkerton, Doppelt & Associates, LLP practices in estate planning and family law. Please feel free to e mail or call us if you have a legal question in these areas.

The Social Security Number Verification Service (SSNVS), set up by the Social Security Administration (SSA), allows employers to use the Internet to match their records of employee names and Social Security numbers with those of the Government's before preparing and submitting W-2 forms. This is a faster and easier method to use than submitting requests to the SSA by other means, including the telephone verification option.

Verification of data is important for both the employer and its employees. Correct names and numbers are critical to successful processing of wage reports, and unmatched records can cause additional processing costs for the employer. From the employees' standpoint, verified names and numbers allow the Government to properly credit employees' earnings records. Any uncredited earnings can adversely affect future eligibility for Social Security's retirement, disability, and survivors programs.

In Fallbrook, some of the residents have cancer as do many residents within San Diego City. Our law firm of Pinkerton, Doppelt & Associates, LLP practices in estate planning and family law. Please feel free to e mail or call us with any legal questions.

Now 15 years old, the Americans with Disabilities Act (ADA) protects disabled persons from discrimination in employment settings. When you first think of individuals with disabilities, the millions of Americans who have some history of cancer may not immediately come to mind. But, as the Equal Employment Opportunity Commission (EEOC) discusses in a recently published guide, a cancer victim may well be entitled to the protections afforded by the ADA.

Cancer is a "disability" within the meaning of the ADA when the cancer itself or its effects substantially limit one or more of a person's major life activities. The limiting condition needs to be more than just temporary in nature. Just what constitutes a major life activity is difficult to succinctly describe, but an exhaustive list would be a long one. Interacting with others, sleeping, eating, and walking are but a few examples. As with other types of conditions, cancer will be treated as a disability if it does not, in fact, significantly affect a major life activity but an employer treats the individual as if it does. This reflects the ADA's goal of attacking discriminatory stereotypes and assumptions when they motivate an employer's decisionmaking.

During the time period before any offer of employment has been made, an employer may not ask an applicant if he or she has (or has had) cancer, or about cancer-related treatments. The employer is permitted to ask if an applicant can perform particular job requirements. If an applicant has volunteered the information that he or she has (or has had) cancer, the employer still may not question the applicant about the cancer or the applicant's prognosis, but the employer may ask questions about whether the applicant will need an accommodation and, if so, what kind.

Once a job offer has been made, the employer may ask health-related questions and require a medical exam, as long as the employer treats all applicants for the same type of position in the same manner. The discovery that an applicant has (or has had) cancer cannot be used to withdraw a job offer if the applicant can perform safely all of a job's fundamental duties, with or without reasonable accommodation. When an offer has been accepted, the employer can ask questions about the employee's health or require a medical exam only when it has a legitimate reason to believe that the cancer may be affecting the employee's ability to do the job, and to do it safely. With a few exceptions, an employer must keep confidential any medical information learned about an applicant or employee.

Continue reading "Fallbrook: Ada Protects Employees With Cancer" »

East County of San Diego has many different cities however one of the main ones is El Cajon which also has a branch of the San Diego Superior Court for civil suits. The below case did not involve an East County of San Diego or El Cajon resident however the principles elaborated upon below can be analagous. The laws of every state are different. Our law firm of Pinkerton, Doppelt & Associates, LLP can offer you a legal consultation under the laws of the State of California. If you have a legal question regarding estate planning or family law, please feel free to call or e mail our firm.

In a nation of 50 different systems of state courts and a highly interconnected national economy, the issue of when one state's courts can assert jurisdiction over a nonresident person or business has always been fertile ground for litigation. State legislatures have addressed the matter with laws that are the civil counterparts to the notion that criminals cannot escape the "long arm of the law." But "long-arm statutes," as they are known, do have their limits. Essentially, nonresidents can be sued in the courts of any state where they have had such contacts inside the state that it is reasonable to conclude that they have submitted themselves to the authority of the courts in that state. The principle is vague, but it has to be to cover the almost endless ways in which we conduct business.

In the business world, conventional arguments over the application of long-arm statutes have involved questions such as whether a party sought to be sued had an office or personal representative in the forum state, or whether a contract was signed by the parties in that state. Those issues still arise, but in the information age, courts increasingly have had to adapt the rules to business conducted over the Internet. Just because a company's website is accessible by customers in a given jurisdiction does not necessarily mean that the company can be sued there. The emerging rule of law is that the more that a customer can have online interactions with a business based elsewhere, the more likely it is that if things go wrong the business can be forced to play an "away game" in court.

Examples make the point better than statements of rules of law. A Vermont furniture store used a trucking company to deliver furniture to a customer in North Carolina. When the buyer was injured during unloading, he tried to sue the furniture company in a North Carolina court. In this case, the "long arm" was not long enough to reach the Vermont company. The furniture had been bought and paid for in Vermont. The only respect in which the store had any connection to North Carolina was that its website could be accessed there, like anywhere else. But it was a passive site, giving information about products, but not allowing purchases through the site.

When an Oklahoma resident bought a laptop computer from a Georgia company, then returned it for repairs, never to see the laptop again, he was unable to sue the company in Oklahoma. The customer had learned about the computer from the Georgia company's website, but he had ordered it by telephone and had not used the website to make the transaction.

Continue reading "East County: Where To Sue? Websites Can Affect Jurisdiction" »

In North County are included Vista, Oceanside, Escondido, Carlsbad and other cities. The San Diego Superior Court is located in Vista. The below case did not invove a North County business. Our law firm of Pinkerton, Doppelt & Associates, LLP representes clients in estate planning and family law cases. Please feel free to e mail or call our firm with any legal inquiries.

A business hired architects for a renovation project involving a parking lot, a retaining wall, and a loading dock. The plans, as drawn up by the architects, did not call for a guardrail along the top of the retaining wall. A construction firm completed the project according to the architects' plans. The contractor had not broken ground until a building permit was in hand, and when the work was done a building inspector gave it his blessing with a certificate of occupancy.

When a pedestrian fell from the retaining wall and injured his knee, he sued the contractor for negligently failing to put up a guardrail. The issue for the court was whether the contractor could defend against liability on the ground that it was "just following orders (or plans, in this case)." A state supreme court sided with the contractor. The court reasoned that builders and contractors are justified in counting on the experience and skill of architects and engineers. To subject contractors to liability under the circumstances of this case would be to unfairly require contractors to follow architectural plans at their own risk and, in effect, to ensure the correctness of specifications given to them, not just their own workmanship.

Of course, there are limits on the extent to which contractors can use the plans as a shield from liability. If the results called for by the plans are so obviously dangerous that no competent contractor would follow them, the contractor can be held liable for building according to those defective plans. The individual who fell off of the retaining wall made this argument, but the court concluded that there was not enough evidence that the wall, even though it had no guardrail, was obviously dangerous.

In National City, there are many companies which access the internet on a daily basis using Google, Yahoo, MSN and many others as their home page. The below company was not located in National City. Our law firm of Pinkerton, Doppelt & Associates, LLP practices in estate planning and family law. Please feel free to e mail our office for a complimentary and confidential consultation.

An Internet marketing company provided a free software application that keeps track of computer users' activity on the web in order to deliver targeted advertising for its clients. The software uses an unpublished internal directory with thousands of website addresses and keywords for particular interests of consumers. When the computer user types in particular terms in a browser or search engine, a relevant "pop-up" ad is delivered to the computer.

A company in the contact lens business learned that its website was in the internal directory and that the software caused pop-up ads for competing contact lens retailers to appear on the screens of individuals who visited the company's website. The contact lens company sued the marketing firm on the theory that the marketing firm had infringed upon a trademark in violation of federal law. From the plaintiff's standpoint, the actions of the marketing firm were allowing competitors to take a free ride on the plaintiff's website.

A federal court ruled against the plaintiff contact lens company. A successful trademark infringement lawsuit requires a showing of a protected trademark and a use of that trademark in commerce in connection with the sale or advertising of goods or services, without the plaintiff's consent. The use of the mark by the defendant also must be such as to likely cause confusion between the plaintiff and the defendant. The action brought by the plaintiff failed primarily due to the court's ruling that the defendant had never "used" the plaintiff's trademark in a manner like that in a typical infringement case. First, the defendant reproduced the plaintiff's website address, which was similar, but not identical, to its trademark. In addition, the pop-up ads, which appeared in a separate window prominently branded with the marketing company's mark, had no discernible effect on the functioning of the plaintiff's website.

It was not enough for a successful claim that the defendant and its clients were trying to take advantage of the plaintiff's goodwill and reputation, which had led people to the plaintiff's website in the first place. What the defendant was doing was no more legally objectionable than the low-tech counterpart of chain drug stores placing their own store-brand products on shelves next to the higher-priced and trademarked versions of the same products, so as to capitalize on their competitors' name recognition.

In Rancho Bernardo, in our law office of Pinkerton, Doppelt & Associates, LLP we receive many faxes which are soliciting services or products. We believe many other companies in Rancho Bernardo and throughout San Diego city and county also receive these. Below is some information for business owners like ourselves regarding this unwanted use of our paper in our fax machine and our toner. Our law firm practices in estate planning and family law. Please feel free to call or our e mail us with any questions or legal inquiries.

There may be some finality to the formerly unsettled picture on federal regulation of junk fax transmissions. Since the first federal legislation on the subject, in 1991, there has been an "established business relationship" exception allowing the sending of commercial advertising by fax under certain conditions. In 2003, the Federal Communications Commission issued a regulation that would have effectively removed the exception, requiring express written permission from the recipient for sending any commercial ads by fax. Opposition from business groups prompted the FCC to put off enforcement of that rule three times.

Before the restrictive FCC regulation ever became effective, new legislation has reinstated the established business relationship exemption. It is still illegal to send unsolicited fax advertisements to anyone who has requested that they not be sent. However, unsolicited faxes can be sent if the sender has an established business relationship with the recipient and the fax itself has a conspicuous notice on its first page informing the recipient that it can request not to be sent more such faxes. To combat the sale of fax lists to mass marketers, the law requires businesses to obtain fax numbers either directly from the recipient or from a published source, such as a directory, an advertisement, or a website.

In Carmel Mountain, there are many workers who are on salary and some who are paid hourly per week. The below case did not concern workers in Carmel Mountain however the analogy is the same. Our law firm of Pinkerton, Doppelt & Associates, LLP practices in estate planning. Please feel free to call or set up an appointment in person for a complimentary consultation. We also have e mail for your convenience.

Unless an employee falls within an exempt category of workers, the federal Fair Labor Standards Act (FLSA) requires the employer to pay the employee overtime at a rate of one and one-half times the regular rate of pay, for hours worked in excess of 40 hours per week. To be exempt is to be ineligible for overtime. The exemption commonly called the "white collar" exemption is for professional employees.

Federal regulations in place since August 2004 have simplified the test for determining which employees come within the white collar exemption. An employee is a professional if each of the following elements is present:

(1) The employee has the primary duty of performing work requiring advanced knowledge, that is, work that is mainly intellectual in nature and which includes the consistent exercise of discretion and judgment;

(2) The employee has advanced knowledge in a field of science or learning; and

(3) The employee has advanced knowledge that is customarily acquired by a prolonged course of specialized intellectual instruction.

In one recent case, a company refused to pay overtime to some of its employees who were licensed pharmacists. Much to the dismay of the employees, the company's reliance on the white collar exemption held up in federal court. All of the parties agreed that the second and third parts of the exemption test were met by the pharmacists, leaving a dispute only over whether the pharmacists' work required the consistent exercise of discretion and judgment. The court found that this element also was present.

The pharmacists, with little supervision, routinely made discretionary decisions about dispensing prescribed drugs to patients, and sometimes the process required consultation with the physicians who prescribed the drugs. The only factor suggesting a lack of discretion was the fact that the employees, as a rule, were expected to follow standard operating procedures from their employer. But this argument by the pharmacists was undermined by the fact that they regularly were asked to consult with the employer about the standard procedures and to review them for any suggested improvements. The pharmacists also had the employer's blessing to stray from the procedures if, in their judgment, it was necessary for a patient's health.

Assuming an employee is eligible for overtime pay, questions can arise as to what comprises an employee's regular rate of pay for purposes of calculating the overtime obligation. It is not always as simple as using an employee's base hourly rate or salary. For example, in another recent case, a federal court ruled that the regular pay of municipal firefighters included payments made to them under a city's sick leave buy-back program. A firefighter who had built up a certain amount of sick leave had the right to "sell" it back to the city for a lump-sum payment. Whenever this happened, the employer effectively was paying the firefighters a bonus for good attendance and for work they had already done. It was as much a part of the firefighters' regular compensation as their base hourly wage, so it had to be taken into account in calculating overtime wages.

In Bonita, there are many golf courses including the Bonita Golf Club and the Chula Vista Municipal Golf Course. In our law firm of Pinkerton, Doppelt & Associates, LLP we practice in estate planning. Please contact us by phone or e mail for a complimentary consultation. In the below example, neither golf club as listed above was a party that law suit.

Joyce had nothing against golf or golfers. In fact, she was a regular golfer herself and a member of two different golf clubs. But when her home in a subdivision adjoining a private golf course was continuously pelted with errant golf balls, she and a neighbor with the same predicament eventually took the matter to court and won.

The golf course began operating in the late 1980s, and Joyce moved into her home in the late 1990s. But the fact that she "came to the problem" did not prevent Joyce from winning an injunction to stop, or at least minimize, incoming golf balls and the golfers in search of them. No doubt the court was impressed by the evidence showing the extent of the problem, which went well beyond an occasional Titleist in the flower bed. Among other effects, there were five damaged window screens, one large broken window, dented siding, and a dimpled car hood (only the golf balls are supposed to have dimples). At least one wayward shot struck the house hard enough to trigger a burglar alarm. It got so bad that Joyce all but gave up on using her rear deck, and her young son was instructed to play only in the part of the yard that was shielded from the golf course by the house. The clincher piece of evidence may have been the 1,800 golf balls that Joyce had retrieved from her yard during the five years she had lived in her house.

The winning legal theory for Joyce was continuing trespass. The common conception of a trespass is of someone walking across another's property without permission, but the concept is broader than that. A trespass is any invasion of a landowner's interest in exclusive possession of the property. Propelling physical objects onto someone's property regularly, frequently, and without the owner's consent is a continuing trespass.

As for the appropriate remedy, the court in Joyce's case offered some guidance. If the golf course operators were determined to keep the course as it was, they either would have to acquire the adjacent land, or the right to use such land, for the purpose of accommodating all of those wayward golf shots. More realistically, the defendant could solve the problem by shortening the hole that adjoined Joyce's property, thereby removing the property from the landing area for all those bad shots. This would be somewhat burdensome for the golf club, but it was not such a hardship as could relieve the club of its obligation to end the continuing trespass and give Joyce back the "exclusive possession" of her home.

In Los Angeles, there are many modeling agencies including Wilhemina Models, Affinity Models & Talent and many others. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse or support any of these and they are listed for illustration purposes only. None of the agencies listed were involved as a party in the example law suit listed below. Our firm practices in estate planning and family law. Please feel free to contact us for a complimentary consultation by e mail or phone.

A two-hour photo shoot paying $250 has turned into a jury verdict of over $15 million for the model, but it took almost 20 years and some good luck for it to happen. Russell had his photo taken for use on labels by a major coffee maker. He did not think much more about it until many years later, when he saw the photo of himself savoring a cup of coffee.

According to the modeling agreement, which Russell had kept in his records, he was supposed to be paid additional sums if the photo was actually used in marketing. The company had never paid more money to Russell, even though his photo had ended up on countless jars of coffee around the world for a six-year period. Nor did the company get his permission for the use of his image.

The jury award was based not just on the company's obligations under the agreement, but also on a percentage of the profits derived from the use of the image. Russell was able to show that his face, appearing as it did in all kinds of advertising, not just the jars of coffee, helped to sell a lot of coffee. As a result, the company's misappropriation of his image carried a very big price tag.

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.

In San Diego City, there are many banks including Washington Mutual, Bank of America, Union Bank and others which use electronic fund transfers. Our firm of Pinkerton, Doppelt & Associates, LLP does not endorse any of these banks and they are used for illustrative purposes only. Please call our office if you need legal assistance or e mail our firm.

The methods for electronic fund transfers (EFTs) are already commonplace for many bank customers. They include ATMs, debit or check cards, preauthorized deposits and withdrawals, and telephone transfers. The federal Electronic Fund Transfer Act answers some basic questions about using EFT services. The Act is especially important when things go wrong, providing rules for the correction of errors and dealing with loss or theft.

Financial institutions must provide documentation of EFTs in two forms: terminal receipts and periodic statements. Among other pieces of information, both documents must include the type of transfer, the amount and date of the transaction, and the location of the terminal. For preauthorized transfers that occur at regular intervals, the institution must provide a notice that the transfer occurred as scheduled.

As with credit cards, financial institutions must investigate and promptly correct any EFT errors reported by the consumer, but there are some differences in the details. For errors like unauthorized or incorrect EFTs, or omission of an EFT from a statement, a consumer should contact the institution as soon as possible, and no later than 60 days after receiving the statement showing the error. As a general rule, the institution must promptly investigate and resolve the matter within 45 days. If more than 10 days pass, it must make the correction, subject to the results of the investigation. Such a recredit is made final if the institution finds an error; if it does not, it must explain the outcome of its investigation in writing to the consumer.

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."

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.

In San Marcos, there are many companies which must dispose of consumer report information and records. There are many companies which make shredders for business use including Fellowes and others. Our law firm of Pinkerton, Doppelt & Associates, LLP does not recommend or endorse any particular company however urges you shred all confidential information. Please feel free to e mail or call with any additional questions.

In the Fair and Accurate Credit Transactions Act of 2003 (FACTA), Congress required the adoption of rules for the proper disposal of consumer report information and records. The legislation was prompted by the growing risk of consumer fraud and related problems, including identity theft, that arise from the improper disposal of consumer information for which there is no longer a business need or purpose. FACTA and the rule stemming from it are meant to make it tougher for dumpster divers and miners of computer data to profit from sloppy disposal methods.

The Federal Trade Commission's Disposal Rule went into effect June 1, 2005, but affected businesses will have six months from that time to come into compliance. After that, failure to comply could trigger a range of civil enforcement actions by the Government or affected consumers.

While there is room for interpretation of the Disposal Rule's meaning, and how it should be applied as circumstances change, the Rule's essential standard is all in one sentence:

Any person who maintains or otherwise possesses consumer information for a business purpose must properly dispose of such information by taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal.

Consumer information covered by the Rule means any record about an individual, in any form, that is a consumer report or is derived from a consumer report. The definition includes a compilation of such records. If the information does not in some fashion identify individuals, however, such as information in aggregate form, the Disposal Rule does not apply. The obvious ways in which individuals may be identified are names, Social Security numbers, driver's license numbers, telephone numbers, physical addresses, and e-mail addresses. But even pieces of information that, by themselves, do not identify someone can, in combination, be regarded as identifying information.

Continue reading "San Marcos: New Rule Affects The Disposal Of Consumer Credit Information" »

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.

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.

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.

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.

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.

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.

In San Diego, almost every business and residence has at least one computer and many of these are connected to the internet. The FTC has information about identity theft. Our law firm of Pinkerton, Doppelt & Associates, LLP can suggest strategies and techniques [including shredding documents] to prevent this occuring however this is one of the fastest growing crimes in the United States according to the Department of Justice. Please feel free to call or e mail our law firm as our legal strategies and techniques can be adapted for many critical issues.

Computers have their own unique set of threats to the security of your identity, but there is good advice for the wary here, too. Update virus protection software regularly. Do not download files or click on hyperlinks coming from strangers. Use a secure browser and a firewall program, especially if you use a high-speed Internet connection. Avoid storing financial information on a laptop but, if you must, use a strong, random password, do not use an automatic log-in feature, and always log off when you are finished.

In San Diego, identity theft is a rising crime with more and more victims every year. Below are some strategies and techniques which can be implemented to minimize your being a victim however there are no guarantees. You can obtain a free credit report and see for yourself what is on your credit report. Our law firm of Pinkerton, Doppelt & Associates, LLP is pleased to provide additional strategies which we have implemented for other clients. Our firm is not a credit reporting service nor do we endorse or support any services however many of our clients have been victims and have consulted with us regarding this. We would be pleased to consult with you as well and please feel free to e mail or call.

* Unless you initiated the contact or you know to a certainty whom you are communicating with, do not give out personal information over the telephone, through the mail, or over the Internet. Before sharing information with an organization, use a website or telephone directory to check on its legitimacy. For companies in San Diego, we recommend researching their company with the Better Business Bureau.

* Remove your regular mail as promptly as possible from your mailbox before a would-be identity thief beats you to it. For outgoing mail, put it into a collection box rather than leaving it to be picked up from your mailbox. Let the Postal Service hold your mail if you are going to be away. You can obtain more tips from the Postal Service as well.

* Yes, it may sound like overkill at home, but it still makes sense to shred or tear up all those discarded charge receipts and similar papers with personal information. There are people out there more than willing to go through your garbage if it means they get to use your credit cards.

* Travel light, financially speaking. Carry only such identifying information, or credit and debit cards, as you will actually need.

* Stay on top of the timing of your credit card bills. A late or missing bill may be a sign that a thief already has taken over your account.

* Approach promotional contacts with a healthy skepticism. Phony offers are too often successful in getting personal information straight from the victim himself.

* Secure your Social Security number. Keep the card itself in a safe place, not on your person. Ask questions and be satisfied by the answers if any person or business asks for your number. There are some legitimate reasons for giving out your number, but it is not a good enough reason when a business simply wants your number as part of its standard recordkeeping.

Identity theft is one of the fastest growing crimes. Many strategies are being recommended includings shredders which can be found at Staples, Office Depot and Fellowes. Our office of Pinkerton, Doppelt & Associates, LLP does not recommend or endorse any of these companies and this information is placed for reference only. Please e mail or fax us with any questions you may have on protecting your identity with legal strategies and techniques.

Whether we like it or not, identity thieves are resourceful. Their methods are as varied as the ways in which consumers need to use some form of identification to initiate and complete transactions. It can all be confusing and intimidating, but consumers need not feel helpless against the expanding threat of identity theft. For most of the tactics used by the bad guys, there are countermeasures for consumers. These measures cannot completely insure that a consumer's identity is safe, but the odds of becoming a victim decline with each protective step taken. What follows is a nonexhaustive collection of safeguards you can put in place to lower the chances that a stranger will do you harm, even as he adds the insult of pretending to be you. These credit bureaus include TransUnion, Equifax and Experian,

* Obtain, review, and insure the accuracy of your credit report from each of the three major credit bureaus. These reports have information on where you work and live, your credit accounts, how you pay your bills, and whether you have been sued or arrested or have filed for bankruptcy.

* Use random passwords on your credit card, bank, and telephone accounts rather than birthdays, initials, or other obvious passwords.

* Make sure that the personal information in your home is secure, especially when you have roommates, employ outside workers, or have service and repair work done in your home.

* Look into security procedures for personal information at work. You should be able to find out who can access your information, how your records are kept secure, and what the employer's procedures are for the disposal of records.

Federal law in the United States preempts State law such as in California. Our firm of Pinkerton, Doppelt & Associates, LLP would be pleased to offer you a complimentary consultation and, if we cannot assist you, we will refer you to the San Diego County Bar Association Laywer Referral Service. Please feel free to e mail or call.

In 1978, Congress amended the Civil Rights Act of 1964 to include a more specific prohibition on pregnancy-related discrimination. Ever since then, it has been unlawful for employers having 15 or more employees to discriminate on the basis of pregnancy, childbirth, and related medical conditions.

The most clear-cut forms of pregnancy discrimination occur when an employer refuses to hire an applicant because she is pregnant or fires an existing employee because she becomes pregnant. But there are more subtle, but no less prohibited, forms of pregnancy discrimination, such as in the areas of accrual and crediting of seniority, compensation, leave from work, health insurance, and other fringe benefits. Although pregnancy is in many ways a unique condition, a rule of thumb for employers is that they may not treat pregnant employees adversely as compared with employees having comparable temporary medical conditions.

If, because of her pregnancy, an employee is temporarily unable to work, she must be treated like any other temporarily disabled employee. This standard does not render an employer powerless to require anything of the employee, but the approach must be even-handed. For example, if the employer normally requires a doctor's statement verifying an inability to work, the same can be required of a pregnant employee.

If the employer has a policy allowing temporarily disabled workers to ease back into work with modified tasks or different assignments, similar flexibility must be shown to the pregnant worker. If an employer generally holds open a job for a certain period of time for someone out on sick leave or disability leave, a pregnant employee is entitled to such treatment, no more or less.

Ironclad rules are more likely to expose companies to liability under the federal discrimination law. A rule requiring a pregnant employee on leave to stay on leave until the baby is born, regardless of whether she may have recovered from the condition related to the pregnancy, invites a lawsuit. Employers also cannot have a policy that prohibits an employee from returning to work for a predetermined time period after giving birth.

Our law firm of Pinkerton, Doppelt & Associates, LLP is committed to handicap access. At our office location at the Clock Tower in San Diego, California, there are clearly designated handicapped parking spaces and elevator access from the street level to our office. Our office is also accessible by wheel chair and we have many clients who are physically disabled.

In its role as enforcer of the Fair Housing Act (FHA), the U.S. Department of Justice sued the developer of, and architects for, two apartment complexes. The government won an injunction against any further construction and occupancy of the apartment buildings.

Among the detailed requirements in the FHA for accessibility for the disabled is a requirement that "common areas" for multifamily dwellings be readily accessible to and usable by handicapped persons. In the case under consideration, the focus was on the landing area shared by two ground-floor apartments in each complex. The front door for each of the apartments was located there, but it was not handicapped accessible because the landing could only be reached by descending stairs. The apartments also had a rear entrance from the apartments' patios that was handicapped accessible, but it was located farther from the parking lot.

The defendants argued that the FHA only requires that there be at least one accessible route into and out of each apartment, and that the patio entrance for each ground-floor unit met that requirement. The federal court disagreed. All it took to make the landing area a "common area" was that it was shared by at least two units, and that was so in the case before the court. It was beside the point that there was a separate, back-door access for the disabled. The FHA clearly mandates that the common area, which in this case was at the front-door entrance to the apartments, be handicapped accessible.

The court indicated that the public's strong interest in eradicating housing discrimination against the disabled outweighed the developer's plea that the injunction translated into substantial financial losses each month. The government also pointed out that the developer chose to proceed at its own peril with construction and leasing after being warned that the design violated the FHA. This case offers an object lesson in the importance of being in compliance with FHA requirements before breaking ground on a construction project.

In San Diego, we have several Jewish congregations. These include Temple Emanu-El, Beth Jacob Congregation and many others. Our firm of Pinkerton, Doppelt & Associates, LLP does not endorse or sponsor any of these religious organizations and is non discriminatory in all of our practices. The below example is used for illustrative purposes only.

Two small Jewish congregations leased second-floor space in a bank building in the business district of a small town. Under the town's zoning ordinance, churches and synagogues were allowed in only one of the town's eight zoning districts. Unfortunately for the congregations, their location was not in that district. When the town tried to direct the congregations out of the business district and into the one district where synagogues were allowed, the worshipers objected. They maintained that there was no suitable location in that district and that such a move was not practical or convenient for the many members who had to walk to services.

When the dispute eventually reached federal court, the congregations ultimately prevailed on a claim brought under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Essentially, that law prohibits a governmental entity from implementing a land-use regulation in a manner that treats a religious assembly or institution less favorably than a nonreligious assembly or institution. The town's ordinance ran afoul of the RLUIPA because it permitted private clubs, social clubs, and lodges in the same business district in which it banned churches and synagogues.

The town argued that it was reasonable to keep houses of worship out of the business district because they eroded the tax base and reduced the vitality of the retail areas. The court agreed with the congregations' response that the places of worship were no more of a drag on business than the clubs and lodges that were allowed in the business district. In fact, there was evidence that members of the congregations regularly stimulated the local economy as they patronized shops on the way to and from the synagogues. There was no comparable stimulus from members of private clubs, who gathered less often and sometimes during nonbusiness hours. All that was left to explain the town's treatment of the congregations, as compared to the town's treatment of the congregations' secular counterparts, was the religious nature of their activities. It was just such discrimination that Congress meant to prohibit when it enacted the RLUIPA.

In Southern California, we have many banking institutions. In San Diego, some of the prominent banks are Bank of America, Washington Mutual, Union Bank of California and Wells Fargo. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse or support any of these institutions and these are used for illustration purposes only.

We Americans write about 40 billion paper checks each year. In addition, for the first time that number recently was eclipsed by the annual number of automated transactions involving checking accounts. Checking account transactions are such a widespread part of our lives that consumers of banking services are well advised to become acquainted with major changes affecting banking laws. Federal legislation called the Check Clearing for the 21st Century Act, or "Check 21" for short, went into effect on October 28, 2004. This is part of the Federal Reserve Board.

Check 21 will allow financial institutions to process "substitute" checks--high-quality paper reproductions created from electronic images of both sides of an original check. In time, check processing will be faster, and this is where there will be ramifications for check writers and depositors.

While it has always been prudent to have enough money in your account to cover a check the moment you write it, who has not used the lag time in check processing to make a necessary deposit? That will soon become a riskier strategy as electronic check processing becomes more prevalent. It will also be more important than ever to keep checkbooks up to date, especially bearing in mind deductions for ATM withdrawals, bank fees, and debit-card purchases. (Another downside to faster check processing is that you may have less time to place a "stop payment" on a check that you have written.)

As a last resort, there are overdraft services, including overdraft lines of credit. They have their place, but remember that each use of an overdraft service is essentially a loan, usually with interest charges or other fees.

Today, most banks do not return customers' actual checks with their monthly statements. Under Check 21, even your bank may not receive your original check but, rather, an electronic substitute check created by the bank where the check was deposited. As long as the substitute check meets standards established under Check 21, it should be just as effective as the original for a customer who needs to prove a disputed payment. Of course, long before the enactment of Check 21, images of checks, rather than the real thing, have enjoyed widespread acceptance as proof of payment. Even if the substitute check falls short in some way, Check 21 provides warranties and remedies to protect the parties to a transaction.

Erroneous or fraudulent payments are largely the domain of state laws, which can vary greatly. Usually, a bank can be held liable to its customer if it charges the customer's account for a check that is not "properly payable." Check 21 has provisions for "expedited recrediting" in the event of improper payment.

A bank customer can make a claim for expedited recrediting from the bank holding the customer's account if the customer asserts in good faith that the bank improperly charged the account for a substitute check. The customer must show that producing the original check, or a better copy of it, is necessary to determine the validity of the charge to the account. A claim for expedited recredit must be made within 40 days of delivery of the relevant bank statement to the customer, or the date when the substitute check is made available to the customer, whichever is later.

Many celebrities live in Southern California and attend the Oscar ceremony. Below is an article about a different "Oscar" but one as famous. Our firm of Pinkerton, Doppelt & Associates, LLP would be pleased to offer you a complimentary and confidential consultation on estate planning or family law. Please feel free to call or e mail our law firm.

Nineteenth-century writer Oscar Wilde had not yet produced the works for which he is best known when he came to the United States in 1882 for a lecture tour to promote a touring opera. He clearly was a celebrity in the making, however, and that is what brought him to the attention of Napolean Sarony. Sarony was making a name for himself, and lots of money, in the still emerging field of photography. He took photographs of the rich and famous, to whom he paid large sums in return for the exclusive right to distribute the photographs.

Wilde posed for 27 pictures taken by Sarony. When the most famous of these was used in an advertisement without Sarony's permission, he sued. The defendant was a lithographer who was said to have reproduced many thousands of copies of the image. Sarony alleged a violation of his copyright in the photograph. The defense was that Congress had the power to protect authors' writings, but not authors' photographs, which were described as mere reproductions of nature created by the operator of a machine.

The case went all the way to the United States Supreme Court (which itself was later the subject of a formal photographic portrait by Sarony). In a decision that has been valuable to photographers and copyright seekers ever since, the Court ruled that Sarony's photograph did indeed have copyright protection. The photograph was deemed a work of art and the product of the photographer's "intellectual invention," no different in nature from a novel. Rebutting the argument that taking a photograph has nothing to do with imagination, the Court described Sarony, as an art critic might have done, as having set up his subject "so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression."

The essential holding in Sarony's case is no less valid today, but more than a century later there are added layers of legal analysis to consider in our copyright jurisprudence. For example, in a recent case, a photographer took pictures of a blue vodka bottle for use in the vodka producer's marketing. The company then had other photographers take similar photos of the bottle and ended up using them in its advertising campaign. The first photographer sued for copyright infringement in his photographs. He reached back into the 19th century to cite the Sarony case, but lost.

The problem was not that the photographs were unworthy of copyright protection. Everyone agreed they were. However, under a doctrine that is now well established in copyright law, courts will not protect a copyrighted work if the idea underlying it can be expressed only in one way, such that the idea and the expression of it "merge." The basic question in the case was, "How many ways are there to create a 'product shot' of a blue vodka bottle?" The court's answer was "not very many."

In San Diego, there are many independent insurance agents. The Department of Consumer Affairs can be contacted for the status of many different licenses. Our law firm of Pinkerton, Doppelt & Associates, LLP is pleased to offer you a complimentary and confidential consultation in the areas of estate planning and family law. Please feel free to e mail our office.

Richard was an independent insurance agent who sold policies for a major insurer on an exclusive basis. After a period in which there was some dissatisfaction and acrimony on both sides of the relationship, the company terminated its agreement with Richard. In subsequent litigation brought by Richard, the parties disagreed as to the reason for the termination. The company's position was that it had fired Richard for disloyalty. How the company came by its evidence of disloyalty led to a separate element of the ensuing lawsuit.

When other events raised suspicions about Richard, an attorney for the company and a systems expert searched the company's main file server for any e-mail to or from Richard that caught their attention because of the e-mail headers. There, they claimed to find two messages from Richard to a competing insurance company that essentially asked if the competitor might be interested in acquiring some clients who supposedly were unhappy with Richard's company.

Richard argued to no avail that his former company violated his rights under the federal Electronic Communications Privacy Act (ECPA). First, he asserted that there was a violation of that part of the law that prohibits "intercepts" of electronic communications such as e-mails. However, courts, including the one hearing his case, have reasoned that an intercept can only occur contemporaneously with the electronic transmission. The company did not access Richard's e-mails as he was sending them, but read them later, so it did not "intercept" them.

The second claim was brought under a different part of the ECPA, which creates liability for intentionally accessing without authorization a facility through which an electronic communication service is provided, and thereby obtaining access to a communication while it is in electronic storage. "Storage" in this context means temporary, intermediate storage, or backup storage. A related part of the law makes an exception from liability for the person or entity providing the communications service. Since Richard's e-mails were stored on a system controlled and administered by his company, the company could not be liable for accessing the e-mails.

In San Diego, many employees work part or full time from their residence. The IRS has specific regulations regarding employees and deductions. We recommend you consult with a licensed Certified Public Accountant for any tax issues. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with estate planning or family law matters. Please feel free to e mail or call us with any questions.

The benefits of working from your home for an employer make telecommuting appealing to many people. In most cases, however, the plus side may be confined to subjective, hard-to-measure factors. What is it worth to you to avoid rush-hour traffic jams or to wear whatever you want while working? CalTrans can tell you how to avoid the most congested route home.

If you are counting on an income tax benefit in the form of a home office deduction, you should understand that most telecommuters do not meet the demanding requirements for the deduction. Still, you will not know how you stand unless you first know the rules. If you do qualify, worthwhile tax breaks are available, consisting of deductions for such items as property taxes, mortgage interest, and utilities.

To qualify for the home office deduction, a taxpayer must meet several requirements relating to the business use of a dwelling. For example, as to the portion of a dwelling in question, it must be used exclusively and regularly for the purpose of carrying on a trade or business. When part of the dwelling is used for business by someone who is an employee, there is an additional requirement that has proved to be a stumbling block for many individuals seeking to claim a deduction. It sounds simple enough, but, as interpreted by the courts, it is a formidable legal hurdle. For an employee at home, the business use of the dwelling must be for the "convenience" of the employer.

There is no cut-and-dried formula for determining if office work at home is for the convenience of an employer. The answer depends on the facts and circumstances of each case. However, there are three alternative situations in which the employer convenience requirement may be met: (1) where maintaining the home office is a condition of employment--that is, the employer requires, not merely allows, the employee to maintain the office and to work there; (2) where the home office is necessary for the functioning of the employer's business; or (3) where the home office is necessary to allow the employee to perform his or her duties properly. Unfortunately for taxpayers hoping for the deduction, it is not enough that working at home for an employer is appropriate or even helpful to everyone involved.

If an employer does not make work space available to an employee at some fixed location, the practical effect is that the employee is required to work at home, even if the employer has no written policy stating such a requirement. In this situation, which is still relatively unusual today, the employee should get it in writing from the employer that the employee has no choice but to work at home.

If working at home is not actually required, an alternative basis for qualifying for the deduction is to show that working at home is necessary if the employee is to perform properly for the employer. This, too, can be difficult for the taxpayer to prove. Consider the cases of two college professors, one who got the deduction, and one who did not.

The first professor, who got the deduction, kept an office at his home for some of the scholarly research and writing activities that were a part of his job. He actually had office space provided by his employer, albeit space he had to share with other professors. He also could use the college library. The problems with these work spaces were that there was a lack of privacy and no safe place to leave the professor's materials. All in all, according to a federal court, there was no place like home, even for working.

In the other case, the professor was denied the deduction under similar circumstances. There, too, the professor complained that his on-campus office had deplorable security and was small, crowded, and noisy to boot. All of that only prompted the Tax Court to rule that the home office was for the professor's convenience, not that of his employer.

In California, corporations are controlled by the Secretary of State. Our firm of Pinkerton, Doppelt & Associates, LLP can represent you in the formation of a corporation as well as making sure that you are complying with all of the rules and regulations so that no personal liability is incurred. Below is an example of what can occur if all policies and procedures are not carefully followed. The San Diego Superior Court is where a case is filed for Court's to pierce the corporate veil. Please feel free to call or e mail our law firm with any questions on the formation of a corporation.

Generally, business entities such as corporations or limited partnerships are legally separate and distinct from the shareholders and members who compose them. When justice requires it, however, courts have ignored the separation of the business and the individual and have allowed a creditor of the business to satisfy the debt from the assets of an individual closely connected to the business. This concept is known as "piercing the corporate veil." A variation on the idea, called reverse piercing of the corporate veil, allows someone to reach the assets of the business entity to satisfy a claim or judgment obtained against a corporate insider. In both instances, a court disregards the normal protections given to a business structure in order to prevent abuses of that structure.

Neither type of "piercing" is done lightly. There must be such a blurring of the lines between a business and an individual that the separate personalities of the two no longer exist. Moreover, while a court's analysis is highly dependent on the facts of each case, typically the party seeking to disregard the distinction between a business and an individual associated with it must show that the individual controlled or used the business so as to evade a personal obligation, perpetrate a fraud or a crime, commit an injustice, or gain an unfair advantage.

Recently, a state supreme court approved the use of "reverse piercing" to allow two creditors of an individual to use the assets of a limited partnership controlled by that individual to satisfy his personal debts. The businessman owned or controlled various business entities. The creditors showed that revenue from the largest of these, a limited partnership, was transferred to a corporation owned by the same individual. Then the funds were used to pay for the businessman's lavish lifestyle, including such items as a second home, a country club membership, a luxury vehicle, credit card bills, and college tuition for the businessman's son. Under these circumstances, the legal distinction between the partnership and the person controlling it had become a fiction to be ignored in the interests of justice.

In California, there are many developments. The below was not tried in the San Diego County Superior Court and is used for illustrative purposes only. Our law firm of Pinkerton, Doppelt & Associates, LLP would be pleased to offer you a complimentary and confidential consultation. Please feel free to e mail or call our office.

Developers bought 12 acres in a hilly, rural area, with plans to build homes on the property. Because surface water pooled on a large central part of the land after heavy rains, the owners channeled the excess water into a roadside ditch. The roadside ditch was connected to a series of waterways that eventually reached a river eight miles away.

The developers' plan hit a major snag when they were sued by the United States Army Corps of Engineers. The Corps contended that the roadside ditch was a waterway of the United States that fell under the protection of the Clean Water Act and the jurisdiction of the Corps. With that premise, the developers first needed a permit from the Corps before digging the drainage ditch on their property.

While the Corps exercises no control over isolated wetlands, it has jurisdiction over wetlands that are adjacent to navigable waters and their tributaries. In particular, the Clean Water Act requires a permit from the Corps for the discharge of fill material into waters that are in the Corps' jurisdiction. When the contractors piled the excavated dirt on each side of the 1,100 foot-long drainage ditch, this constituted the "discharge" of fill material into wetlands without a permit.

A federal court took the side of the Corps in holding that a permit was required. First, the court deferred to the Corps' interpretation of the regulation under which the tract to be developed was regarded as having wetlands. Second, the adjacent roadside ditch was a tributary of navigable waters, even though water from the ditch flowed through several other nonnavigable watercourses before reaching the river and later the Chesapeake Bay. The court accepted the Corps' interpretation of "tributary" as encompassing all of the streams whose water eventually flows into navigable waters.

The court required the developers to fill in the drainage ditch on their property and restore their wetlands to their pre-violation condition. It rejected the developers' argument that a more reasonable remedy would have been to allow the ditch to stay by removing the fill to a nonwetlands part of the property.

Developers are well advised to carefully evaluate whether any existing ditches or drainage swales are linked to navigable water, however indirectly, before dredging or filling what might appear to be an isolated wetland beyond the jurisdiction of the United States Army Corps of Engineers.

In San Diego, we have many major hospitals including Scripps Clinic, Sharp, Pomeraod and others. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse or support any medical institution.

Margaret worked in a clerical position for a hospital. During the first three years of her employment, she was disciplined several times for unexcused absences, and she risked termination if her absenteeism continued. Then, Margaret slipped and fell while at work, fracturing her elbow and ankle and aggravating an existing wrist condition. Over the next 10-day period, she worked only one complete workday. Margaret missed parts of the remaining workdays because she had medical appointments, or was not feeling well, or both.

The hospital, seeing these absences as the straw that broke the camel's back, fired Margaret for excessive absenteeism. Margaret sued her ex-employer, contending that her absences after her fall were protected leave under the federal Family and Medical Leave Act (FMLA). A federal court ruled that the hospital was free to fire Margaret without running afoul of the FMLA.

The outcome in Margaret's case turned on a fine distinction about language in the FMLA and a regulation issued under it. The FMLA provides that an eligible employee can take up to 12 workweeks of leave during any 12-month period because of a "serious health condition" that makes the employee unable to perform the functions of the employee's job. After taking such leave, an employee must be reinstated to the position held before the leave. Part of the statute's definition of "serious health condition" is a condition that involves "continuing treatment by a health care provider." That phrase is not defined in the FMLA itself, but a Department of Labor regulation describes it as including "a period of incapacity . . . of more than three consecutive calendar days." Incapacity refers to the inability to work or perform other regular daily activities.

Margaret argued to no avail that she had been incapacitated for more than three consecutive calendar days, and that she therefore had taken only protected leave for a "serious health condition." The problem was that she missed work for only a part of all but one of the days in question. The court reasoned that a "calendar day" is commonly understood to mean a whole day, from midnight to midnight. Thus, to be afforded protection under the FMLA, the period of incapacity must last for more than 3 whole days, that is, 72 consecutive hours. In addition to parsing the language from the regulation, the court ruled that the incapacity either extends for over 72 straight hours, or it does not. By contrast, under the interpretation argued for by Margaret, more issues would arise about how much incapacity on a given day is enough for that day to count toward the requirement in the regulation. The court was "loathe to adopt a strained interpretation of a regulatory provision that would result in employers, employees, and courts facing an uncertain and ever-shifting legal landscape."

Many San Diego residents received unsolicited offers from credit card companies. Legitimate lenders include San Diego County Credit Union Bank of America, Wells Fargo, Washington Mutual, American Express, Discover, Visa, Mastercard and many other lenders. Have you ever received an unsolicited offer from the above lenders or any other lender?

Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse any of these lenders and uses them for illustrative purposes. Our law firm does not represent any of these companies. At our firm, we want you to have information to make an informed and intelligent decision regarding your legal issues. If your goal is to stop these offers, below is information on how to assist in obtaining this goal.

If you want to stop the flow of unsolicited credit-card offers, there is a way. Under the federal Fair Credit Reporting Act, consumers have the right to stop credit bureaus from providing their names and addresses for marketing lists.

As required in the federal legislation, the major credit bureaus have set up a toll-free number (888-5-OPT-OUT--888-567-8688) that is required to be provided with the offer of credit. When you call, you can either opt out by telephone for two years or request a form you can use to opt out permanently. By calling the same number, you can also be put back on marketing lists after having been removed from them. In cases of joint credit, both parties may be required to opt out before the solicitations will stop.

In San Diego, we follow the laws from the State of California and the United States. The below example is from New York. With PC AnyWhere and other services, it is possible to work at home with the same programs as at work. There can be, however, security issues and at our firm of Pinkerton, Doppelt & Associates, LLP we do not use telecommuting and all of our staff works in the office. This issue of unemployment, however, is not one unique to New York and in San Diego this is the EDD.

Maxine worked in New York for a financial information services provider. When she moved to Florida, her employer agreed to allow her to telecommute. Maxine was responsible for the same tasks that she had handled in New York, only now from her laptop in Florida she logged onto her employer's mainframe computer each workday.

Two years into the telecommuting arrangement, Maxine's company decided to end it. When she turned down an offer to return to New York, Maxine was without a job. She was denied unemployment benefits in Florida following a ruling that she had voluntarily quit her job without good cause. However, the Florida agency advised Maxine that she might be eligible to receive unemployment benefits in New York.

In what may be the first court decision of its kind on interstate telecommuters, New York's highest court also ruled that Maxine was ineligible for benefits, but for a different reason. Under New York law, a threshold requirement for eligibility is that the employee's entire service for the employer, except for incidental work, must be "localized" in New York. Maxine argued unsuccessfully that her services were localized in New York, at her employer's mainframe computer, notwithstanding that she initiated this service on her laptop in Florida. The court ruled instead that the physical presence of the employee determines in which state a telecommuter is located. For work done while she was located in Florida, Maxine was not eligible for unemployment compensation in New York.

When the new economy met the old unemployment insurance system in Maxine's case, the court stayed with principles that predate the age of computers. The outcome was dictated by two rules that are uniformly recognized: All of an individual's employment should be allocated to one state, which should be solely responsible for paying benefits; and that state should be the one in which it is most likely that the individual will become unemployed and seek work.

Unemployment has the greatest economic impact on the community in which the unemployed individual resides, and benefits generally are linked to that area's cost of living. Legislators and judges from previous generations could not have foreseen today's world of interstate telecommuting, but the rules they created are still valid. For better or worse, Maxine was tied to Florida, where she was physically present, and she could not look to New York for unemployment benefits.

While San Diego residents live in San Diego County in California, both State and Federal Taxes are collected. The Franchise Tax Board is the taxing agency for San Diego in California and the Internal Revenue Service is the taxing agency for San Diego for the United States. Our law firm of Pinkerton, Doppelt & Associates, LLP are not Certified Public Accountants and do not prepare tax returns for clients. We can, however, discuss estate planning strategies. Please feel free to e mail or call us for a complimentary consultation.

On May 28, 2003, the Jobs and Growth Tax Relief Reconciliation Act of 2003 became law. Much of this federal tax law applies only to the years 2003 and 2004, after which provisions in the 2001 Tax Act will again become effective. Nonetheless, the Act contains some significant changes for individuals as well as businesses.

The child tax credit increases from $600 to $1,000, which is an acceleration of a scheduled phase-in that was to have occurred between 2005 and 2010. In 2005, the credit will fall to $700, but will then gradually rise to $1,000 again by 2010 by virtue of the 2001 Act.

The standard deduction for married couples will double to twice the amount of the standard deduction for single taxpayers. Married taxpayers filing a separate return will claim the same standard deduction as a single person. Similarly, for 2003 and 2004, the upper limit of the 15% income tax bracket for married couples will increase to a dollar amount that is twice that for a single taxpayer.

For 2003, income levels for the 10% tax bracket will increase to $7,000 for single taxpayers and $14,000 for joint filers. In 2004, these levels of income will be indexed for inflation. Retroactive to January 1, 2003, the new tax rates for individuals are 10%, 15%, 25%, 28%, 33%, and 35%. For transactions taking place from May 6, 2003 to December 31, 2007, the maximum capital gain tax rate has dropped from 20% to 15%, and from 10% to 5% for lower-income taxpayers.

To reduce the double taxation of corporate earnings, dividends received by an individual shareholder from a domestic or qualified foreign corporation will be taxed like capital gain income. This means a rate of 15% for most taxpayers and 5% for those at lower-income levels, assuming the stock is held for at least the holding period set by law. Dividends from certain corporations are not eligible for this new treatment, such as those from tax-exempt charities, farmers' cooperatives, and particular foreign companies

The Act increases the amount of investment that may be deducted immediately by small businesses from $25,000 to $100,000. The amount of this deduction is reduced by the amount that the cost of the business assets exceeds $400,000. Under prior law, this phase-out of the deduction began at $200,000.

The additional first-year bonus depreciation deduction is increased from 30% to 50% for investments acquired and put into service between May 5, 2003 and January 1, 2005. Qualifying property still must be brand new, with a class life of 20 years or less.

In San Diego, unfortunately, many businesses do fail. In San Diego, the civil lawsuits are heard in the San Diego Superior Court and the bankruptcy cases are heard in the San Diego Bankruptcy Court. Our firm of Pinkerton, Doppelt & Associates, LLP does not practice in bankruptcy however we can refer you to the San Diego County Bar Association Lawyer Referral Service who can assist you with a qualified attorney.

Stanley and his wife, Kay, owned and operated a travel agency. To facilitate the business of selling airline tickets, the agency entered into an agreement with an airline ticket broker. The broker acted on behalf of airline carriers, issuing tickets and collecting payments from travel agents. The travel agency maintained a trust account for holding customer payments owed to the broker. Part of the deal was that the couple signed personal guarantees for any debts owed by their agency to the broker.

When the travel agency began experiencing financial trouble, it also began to fail to deposit the proceeds of ticket sales into the trust account. As the broker tried to draw from the trust account, the checks started to bounce. The agency's fortunes continued to decline and it went into bankruptcy. The broker then sued Stanley and Kay on their personal guarantees, claiming that, because the debtors had violated their fiduciary duty, the debt owed to the broker was not dischargeable in bankruptcy. The Bankruptcy Code provides that a debt is not dischargeable if it is for failure to meet an obligation while acting in a fiduciary capacity. In general terms, a fiduciary is one who undertakes to act primarily for another's benefit, such as in managing money or property.

Stanley and Kay maintained that only their agency had a fiduciary duty to the broker, so that whatever debt they owed because of the personal guarantees could be discharged in bankruptcy. A federal court disagreed. It was true that, by itself, the fact that the couple had personally guaranteed the agency's debt to the broker did not put them in a fiduciary relationship with the broker. The critical factor was that Stanley's and Kay's personal actions had created the debt owed by the agency to the broker. They had withheld money that should have gone into the trust account and had depleted that account to the point that checks were returned for insufficient funds. The court refused to allow Stanley and Kay to use bankruptcy to avoid the consequences of their own misconduct.

In San Diego, many trials and depositions take place on a daily basis in the San Diego Superior Courts. The court rooms are open to the public except in limited proceedings such as juvenile hearings and other "closed door" testimony. During these hearings, many humorous comments are made during very serious proceedings. It is not unknown for jurors to laugh in a court room during testimony when something unexpected or funny is stated and, most of the time, the witness did not realize what they were saying.

Below are some examples from court rooms and depositions across the country.

The following things were actually said by people in courtrooms across the country.
Q: Doctor, did you say he was shot in the woods?
A: No. I said he was shot in the lumbar region.

Q: Are you married?
A: No. I'm divorced.
Q: And what did your husband do before you divorced him?
A: A lot of things I didn't know about.

Q: Did you blow your horn or anything?
A: After the accident?
Q: Before the accident.
A: Sure, I played for ten years. I even went to school for it.

If you go and watch a trial or participate in a deposition, and hear comments you think are humorous and appropriate for a blog, please e mail them to our law office of Pinkerton, Doppelt & Associates, LLP for possible inclusion in a future blog posting.

San Diego taxpayers pay both the federal government, IRS, and the California government, FTB, and many taxpayers become in arrear in their payments and often are placed in collection action by the IRS. As such, offers to compromise and companies which promise assistance in settling these claims are numerous. Be sure to check with the San Diego Better Business Bureau before paying for any of these services.

The Internal Revenue Service has published new regulations that will make it easier for taxpayers to negotiate settlements of their tax debts. The regulations expand the "offer in compromise" program, under which settlements can be reached with taxpayers who cannot pay their entire tax debts.

Under the old policies, the IRS could accept a taxpayer's offer of settlement only if there was a doubt about whether the taxpayer was liable or the debt could ever be collected. These bases for compromise remain in effect, but the new regulations add flexibility, making the IRS decision to accept or reject a compromise offer dependent on the taxpayer's particular circumstances. The bottom line is that a taxpayer is eligible for a compromise where collection of the entire tax debt would create economic hardship or where there are compelling public policy or equity considerations favoring a settlement.

It may be evidence of hardship if a taxpayer cannot: (1) earn a living due to a long-term illness or disability, and it is foreseeable that resources will be exhausted; (2) pay basic living expenses if assets are liquidated to pay the tax debt; or (3) borrow against equity in assets, and seizure or sale could make it difficult for the IRS to collect the tax debt.

Even with loosened-up rules, the IRS will only come so far to meet a taxpayer in a settlement. The new rules do not allow a compromise that "would undermine compliance with the tax laws." The burden is on the taxpayer to make the case for compromise. Absent exceptional circumstances, the IRS will presume that an uncompromising application of the tax laws gives a fair and equitable result.

If you have any questions about offers and compromise, please feel free to e mail our firm of Pinkerton, Doppelt & Associates, LLP.

San Diego has many golf courses. Some are public and some are private. One of them is the Balboa Park Golf Course and there are many other and included is a site for assistance in finding San Diego Golf Courses.

For some, golf courses are like outdoor board rooms. The emphasis is as much on conducting business as it is on lowering handicaps. But if business transactions have taken priority over the game itself, there is a risk that an injury caused by some one's negligence can have repercussions for the firm's bottom line.

A member of a golf club invited a guest for a round of golf and a sales pitch as to why he should come to work for the member's family business. The guest was new to golf, and his host did not fill him in about basic golf etiquette. The guest teed off on the first hole when another golfer on the same hole was only about 70 yards down the fairway. The tee shot struck the golfer in the eye, causing permanent partial loss of vision and a scar.

The injured golfer sued the club member for negligence for not controlling her guest, as required under the club's rules. She argued that the member did not meet her duty of stopping her guest from teeing off before the fairway was clear. In fact, the member had hit first, giving her uninitiated guest the impression that he could do the same.

Before the case could get to a jury, it was settled for a substantial amount. Most of the settlement cost was borne by the club member's family business, because the golf outing was as much for recruiting an employee as for recreation. This case suggests the need for company policies requiring employees to supervise their guests when entertaining on a golf course, including a basic review of golf etiquette and safety for novice golfers.

If you have questions regarding any legal matter, please feel free to contact our firm of Pinkerton, Doppelt & Associates, LLP. You can call or e mail our firm. If we cannot assist you in the area of the law that you are seeking, we can assist you with a complimentary consultation with an attorney referred by the Lawyer Referral Service of the San Diego County Bar Association.

San Diego is a very expensive place to live and most homes have a mortgage. As such, San Diego residents either obtain a loan for a local bank or finance company or get one from out of state. Many borrowers search on line with search engines such as google or yahoo. Always make sure that the company is researched on the San Diego Better Business bureau of the Better Business Bureau in the city where the company is located who will be lending.

At a time when stock prices have tumbled, so have interest rates on home equity loans and mortgages, and many homeowners are borrowing against their homes to generate cash. As a result, more people are at risk of being victimized by "predatory" lenders. A predatory loan occurs when a company misleads, tricks, or even coerces someone into taking out a home loan with excessive costs and without regard to the home owner's ability to repay. The consequences of such a loan can be especially severe since the defaulting borrower could lose the home itself.

For the most part, predatory lending has been associated with companies that specialize in marketing to people with poor credit histories or who are simply strapped for cash. Typical targets are elderly people with high medical bills or overdue home repairs, middle-class individuals swamped by credit card debt, and lower-income consumers with less access to reputable lenders.

A typical consumer may not know the terms for predatory practices, but the borrower will recognize some of these behaviors. In a "bait and switch" scheme, the lender promises one thing but offers something different at closing, when it really matters. "Equity stripping" results from encouraging heavy borrowing from home equity, beyond the consumer's ability to make payments. "Loan flipping" is multiple refinancing, to the point that fees, and possibly higher rates, become unmanageable. When a lender engages in "loan packing," it has added charges to the loan contract for overpriced or unnecessary items.

There are federal laws designed to protect consumers from some of the predatory lending practices. The Truth in Lending Act requires lenders to give timely information about loan terms and costs, and it allows borrowers on loans secured by a home to cancel the loan up to three business days after signing the contract. The Home Ownership and Equity Protection Act requires providers of "high cost" refinancing or home equity loans to give the borrower key information about the loan three days before closing. It also prohibits the making of a home equity loan without regard to a borrower's ability to pay it back. These laws play an important role, but the best deterrent to predatory lending is informed and vigilant consumers.

Some of the most effective preventive measures are only common sense, but in practice they are too often ignored: (1) think through the decision to borrow before taking the plunge, and be wary of a lender who hurries you; (2) select a lender with a good reputation in your community, and steer clear of home improvement contractors or loan brokers who contact you out of the blue; (3) compare quotes from at least three lenders, then negotiate for the best possible deal. And remember, the loan with the lowest monthly payment is not necessarily the best loan; and (4) read and make sure you understand the loan documents before signing them, keeping an eye out for discrepancies between what may have been discussed previously and what is in the fine print.

Please feel free to contact our law office of Pinkerton, Doppelt & Associates, LLP with any legal questions you may have. We offer a complimentary consultation and you can schedule this by e mail or by telephone.

In San Diego, many residents have computers. Some computers are purchased by an employer, such as in the below example, and some are purchased privately. BestBuy and Circuit City are two locations where computers can be purchased and there are many others. At Pinkerton, Doppelt & Associates, LLP, we endorse neither company and they are listed for illustrative purposes only.

The rules and expectation of privacy are different for computers for employment use purchased by an employer for an employee and a private user. Of course, in neither case would there be privacy if a search warrant from a Judge of the San Diego Superior Court was issued for the computer as this would authorize law enforcement to seize the computer as part of illegal activity. If you have any questions regarding this, please feel free to e mail our law firm.

An insurance services company bought two computers for use by Robert, one of its employees. One computer was used at the office, and one was used exclusively at home. Robert signed a policy statement in which he agreed that he would use the computers for business purposes only and not for various inappropriate purposes, including accessing obscene material. He also consented to having his computer use monitored "as needed" by employer personnel and agreed that his communications by computer were not private.

When Robert's employer determined that he had used the home computer to view sexually explicit material, it fired him, despite Robert's protests that he had not intentionally accessed the pornographic sites. Robert sued for wrongful discharge, contending that the real reason he was let go was the fact that three days after the termination some of his stock options were going to vest. Since the company contended that the home computer was likely to contain evidence that Robert was deliberately accessing pornography, it demanded that the computer be produced, with nothing deleted from the hard drive. Robert refused, arguing that he had an expectation of privacy when using a computer at home, even a computer supplied by his employer.

The court ordered Robert to turn over the computer under the terms required by his employer. It rejected the argument that the home computer was a "perk" for senior executives that could be used for personal purposes. In Robert's case, the home computer was, in fact, primarily used by him and his family for personal matters. Information on the computer included his family's financial information and personal correspondence. Robert and his family had been treating the home computer as a personal computer at their own risk.

Robert lacked a reasonable expectation of privacy in the home computer, in part because he had notice of and had consented to his employer's policy allowing only business use of the computer. Another factor weighing against his position, however, was "accepted community norms." He could not argue forcefully that there had been an invasion of privacy given that, according to the court, over three-quarters of major firms in the country monitor, record, and review employee communications and activities on the job.

In San Diego, may employees work on an annual salary and sales commission determined by compensation as part of their contract. If you have any questions on this issue, or any other legal matter, please do not hesitate to contact our office of Pinkerton, Doppelt & Associates, LLP by phone or e mail. If we cannot assist you, we can refer you to the San Diego County Bar Association Lawyer Referral Service in which you will be given a one half hour free in-house consultation by a qualified member of their referral panels. There are many other lawyer referral services which are also certified by the State Bar of California and the Attorney Search Network and the Attorney Referral Service are two of these.

As a sales representative for a computer software company, Richard received an annual salary and sales commissions as determined by a compensation plan that was part of his contract. There was a specific formula for how commissions were to be calculated, but language in the plan gave the company broad authority to make a final decision about compensation and to change the plan at any time. For sales commissions, in particular, the employer reserved the right to review any transaction generating a commission beyond a salesman's annual quota and to determine the "appropriate treatment" of it.

When Richard scored an especially large sale, the company decided that its "appropriate treatment" was to cap Richard's commission at an amount that was less than he expected under the usual formula. The company's position was that the large commission expected by Richard was not justified because it arose from a single transaction on which Richard had not done as much work as he claimed, and because he had only been employed by the company for eight months. Richard quit and sued for breach of contract.

A federal court ruled in favor of the employer. The language in the compensation plan was broad, but it was not ambiguous. The whole thrust of the document was to leave determination of the commissions to the employer's discretion, notwithstanding that the plan identified some forms of appropriate treatment of commissions.

When a contract leaves a decision up to one party's discretion, it is nearly unassailable in court. A court may intervene if that party is guilty of fraud, bad faith, or a grossly mistaken exercise of judgment, but Richard did not make those arguments. Despite the fact that it was arguably unfair, the court ruled that such a decision was "out of our reach."

In San Diego, many business' and individuals use a facsimile machine. This has become an essential part of the San Diego working community and telephone providers such as AT&T and Sprint can provide this service as well as other carriers. Our firm of Pinkerton, Doppelt & Associates, LLP does not endorse any specific carrier.

The Telephone Consumer Protection Act (TCPA) prohibits any person within the United States from using a telephone facsimile machine to send an unsolicited advertisement to a person with whom the sender does not have an existing business relationship. A prior business relationship will be treated as consent to a faxed advertisement unless the recipient withdraws that consent.

Court remedies under the TCPA should command the attention of any company giving thought to a fax advertising blitz directed at potential customers. A person receiving an unsolicited fax may bring an action to prohibit violations of the TCPA and for actual damages, or statutory damages of $500 per violation. For a willful or knowing violation, a court has the discretion to triple the amount of statutory damages. Actual damages may amount to cents per page and the costs of tied-up telephone lines. Statutory damages, however, could reach into the millions for a "blast-faxed" advertising campaign with hundreds or thousands of faxes, with each transmission considered a separate violation.

Not only can the cost of TCPA violations be steep, but in some cases that cost may be extracted from the personal assets of corporate officers, not just the business itself. In one case, the officers and sole shareholders of a small advertising service were found to be personally responsible for statutory damages based upon nearly a million unlawful faxes a month, over five months.

They were personally liable not simply because they held particular offices and sat on the board of directors, but because they actively oversaw and directed the unlawful conduct. With good reason to believe that their actions violated the TCPA, the individual defendants had persisted, as the court put it, "with their eyes and pocketbooks wide open."

Please feel free to e mail our office if you have any questions.

In San Diego, there are thousands of employers and employees. It is important to remember that federal law supersedes state law. There are also many state laws. For your convenience, we have provided links to the United States Department of Labor and the California Department of Labor.

The combined effects of an aging population and a sluggish economy have led to an increase in lawsuits alleging age bias in the workplace. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in the employment of persons who are at least 40 years old. The ADEA covers most private employers of 20 or more persons. It forbids age discrimination in advertising for employment, hiring, compensation, discharges, and other terms or conditions of employment. Retaliation against a person who opposes a practice made unlawful by the ADEA or who participates in a proceeding brought under the ADEA is a separate violation.

The ADEA takes into account that sometimes there is a correlation between age and the ability to fulfill the requirements of a job, and that even older workers must comply with employers' rules and requirements that have nothing to do with age. An employer does not violate the ADEA if it takes an otherwise prohibited action where age is a "bona fide occupational qualification" necessary to the operation of a particular business. Nor is it a violation to differentiate among employees based on reasonable factors other than age or to fire or discipline an employee for good cause.

Before suing in court, an aggrieved person first must allege unlawful discrimination in a charge filed with the Equal Employment Opportunity Commission (EEOC) and then wait 60 days to allow the EEOC an opportunity to resolve the dispute informally before taking further legal action. Court remedies include injunctions (court orders stopping a discriminatory practice), compelled employment, promotions, reinstatement with back pay and lost benefits, and an award for attorney's fees and costs of bringing the suit. If a court finds that an employer's violation of the ADEA was willful, it may also award liquidated damages equal to the out-of-pocket monetary losses of the plaintiff.

It is not essential to an ADEA lawsuit that there be a "smoking gun" in the plaintiff's favor in the form of derogatory age-based comments about older employees. In fact, remarks of that kind will not support liability if they have no connection to the challenged employment decision. In a recent lawsuit brought by an on-air television reporter who was fired, a boss's comment that "old people should die" was an insignificant stray remark because it was made about the boss's own father. On the other hand, it was very helpful to the plaintiff's case that the same boss had stated repeatedly that she wanted to "go with a younger look" and she did not like having an older man appearing on the news.

Employers sometimes select older workers to be terminated as a money-saving measure, given their generally higher compensation and perhaps their being close to vested retirement benefits. There is no ADEA violation in a decision that treats employees differently because of something other than age, such as money. An employer will not be liable under the ADEA for terminating an employee solely to prevent his pension benefits from vesting. (That conduct might very well violate ERISA, however.) Such a scenario is distinguishable from situations in which employers face ADEA liability because they have made decisions based on the stereotype that productivity and competence always decline with old age.

Our firm of Pinkerton, Doppelt & Associates, LLP does not practice in employment law and posts this as a public service. You can e mail our firm if you need a referral to an employment or labor law attorney.

In San Diego, many civil lawsuits are filed in the San Diego Superior Court. Some are actions for defamation. There are many search engines such as Google, Yahoo and others which are internet service providers. Our law firm of Pinkerton, Doppelt & Associates, LLP cautions you regarding posting defamatory comments on any internet [or non internet] communication. Doing so can expose you to civil liability. Please feel free to e mail us with any questions.

The free-wheeling give and take in various online forums is leading to more defamation claims by individuals and businesses. Given that so many online speakers are anonymous, however, Internet service providers sometimes become trapped between the speaker and his offended subject. Before the alleged victim can seek redress, the perpetrator must be identified, and providers often resist divulging such information. Courts are still in the early stages of setting rules for these legal contests.

An electronics company brought an action in California against an anonymous individual who allegedly had trashed the company's publicly traded stock on an Internet message board. Among other comments, the secretive critic had said that the company produced "low tech crap" and that its president was manipulating stock prices. In its efforts to identify the speaker, the company discovered that his online name was registered with a service provider with headquarters in Virginia.

When the plaintiff sought permission from a Virginia court to examine the provider's records, the request was met with stiff resistance. The provider argued that it would infringe on the constitutional right to speak anonymously if it were forced to reveal subscriber information. Citing the principle that the courts of one state generally should respect court orders from a sister court, the Virginia court allowed the review of the provider's records. The right to free speech was not an impediment to the court's ruling, as "the constitutional guarantees of free speech afford no more protection to the speaker than they do to any other tortfeasor who employs words to commit a criminal or civil wrong."

Wounded by disparaging comments posted anonymously on an Internet message board, another company similarly sought to unmask its detractors by forcing information from a provider. In that case, the court saw more merit in the free speech defense raised by the provider, but it did not completely block the request for subscriber information. The court balanced the right to speak anonymously with the right of the injured company to protect its proprietary interests and its reputation.

The result was a compromise of sorts: The company could gain access to the speakers' identities only if it first showed to the court's satisfaction that it could make out a plausible defamation case against them. This meant exactly identifying the offending statements and demonstrating how they harmed the plaintiff. In this case, the critics remained safely in the dark because the company could not substantiate its claims that the comments adversely affected its stock price and its hiring practices.

In San Diego, many residents are home owners. In San Diego, as well, most home owners have a mortgage and insurance policy. Many companies such as Farmers and State Farm and Geico may have home owner insurance policies. Our firm of Pinkerton, Doppelt & Associates, LLP does not endorse or represent any of these companies and the links are placed for information purposes only. If you have any questions, please feel free to e mail our office.

Reading and understanding all of the language in a homeowners' insurance policy are not formalities to be skipped over while searching for the signature line. As with any contract, the fine print can have real and lasting consequences, and its contents will control over any contradictory verbal assurances. Taking the time to understand the terms of their policies might have headed off bad outcomes for homeowners in two recent cases.

Business Purposes Exclusion

Joan bought property consisting of a home, two barns, and other outbuildings. She also purchased a homeowners' insurance policy that excluded coverage for any nondwelling structure that was rented out "unless used solely as a private garage." Joan rented the barns to a commercial marina, which used them for winter storage of customers' boats. When one of the barns collapsed due to snow and ice on its roof, Joan submitted a claim for loss of the barn.

The insurer denied coverage, prompting Joan to point out that the rental exclusion should not apply because the marina was using the barn as a "private garage." Her point made sense as far as it went, but the insurer won because of a separate exclusion from coverage for any nondwelling "used in whole or in part for business purposes." Joan's main occupation was as a financial analyst, and she brought in only a few thousand dollars by renting out the barn. But all that was necessary for the business purposes exclusion to apply was that the insured regularly engage in the conduct with an intent to profit.

It was significant for the court that, by failing to disclose her conduct, Joan had prevented the insurer from knowing the risks it was insuring. The purpose of a business pursuits exclusion, after all, is to rule out coverage for a whole set of risks and liabilities flowing from business activity. It did not matter that the damage to the barn was not caused by the boats that were stored there for profit.

"Household" Defined

At the heart of another dispute over homeowners' insurance coverage was what turned out to be an erroneous assumption by the homeowners that "residents of your household" meant any persons living on the same parcel of land, even if in a different house from that occupied by the insureds. Ken and June lived in one house and their daughter and 10-year-old grandson lived rent-free in another house that was only 20 feet away and had the same mailing address. The close-knit family often shared meals and activities, and Ken and June regularly cared for their grandson.

When the grandson accidentally shot a playmate with a rifle, Ken and June submitted a claim under their homeowners' policy, which covered "residents of your household who are your relatives." The insurance company succeeded in arguing that it had no obligation to defend the grandson in a suit for his friend's injuries because he was not a resident of Ken's and June's household.

In legal terminology, a "household" is a collection of persons living together as a unit under one roof or within a single "curtilage." "Curtilage" is a technical term for the area next to a house that is inside the same enclosure, is used for the intimate activities of the house, and is protected from observation by passers-by. The house where the grandson lived did not meet any of these criteria so as to make the grandson part of Ken's and June's "household." The four individuals in this case probably constituted a household in many respects and for many purposes, but not in the context of interpreting the homeowners' insurance policy.

In San Diego, there are thousands of employers. It is important to keep current with the laws regarding the Department of Labor. Our firm of Pinkerton, Doppelt & Associates, LLP does not practice in labor law however we can refer you to the San Diego County Bar Association Lawyer Referral Service which has a panel of qualified employment and labor law attorneys. If you have additional questions, please feel free to contact us by e mail or phone.

The U.S. Department of Labor has published a guidebook to provide businesses with general information on the laws and regulations that the Department enforces. The guidebook describes the statutes most commonly applicable to businesses and explains how to obtain assistance from the Department for complying with them.

The authority of the Department of Labor extends to many statutes, but the following are several that affect most employers: Employee Retirement Income Security Act (ERISA); Occupational Safety and Health Act (OSHA); Fair Labor Standards Act (FLSA); and Family and Medical Leave Act (FMLA).

The Employment Law Guide: Laws, Regulations and Technical Assistance Services can be accessed on the Internet at:

www.dol.gov/asp/programs/guide.htm

In San Diego, the laws of the State of California apply as well as the Federal law. It is important to understand the correlation between the two. If you have any questions regarding this, please e mail our firm of Pinkerton, Doppelt & Associates, LLP.

The Federal Arbitration Act requires courts to enforce clauses in commercial contracts that require arbitration of disputes. The U.S. Supreme Court has ruled that transportation workers engaged in interstate commerce are exempt from the Act. For other types of workers, the effect of the Supreme Court ruling was to reaffirm the enforceability of mandatory arbitration provisions in agreements entered into by workers engaged in interstate commerce.

Interstate Commerce Requirement

The Act's requirement that workers be engaged in interstate commerce is not especially difficult to meet, given the interconnectedness of the economy. When a nurse at a hospital tried to avoid binding arbitration of her wrongful discharge claim by arguing that her employment agreement had no impact on interstate commerce, the argument failed. The court pointed out that the nurse's employment depended on the constant use of supplies purchased from other states and that the hospital treated many out-of-state patients. More often than not, similar connections can be made between most jobs and the flow of interstate commerce, especially for large employers.

Level Playing Field

To say that employers and employees generally may bind themselves to arbitration is not to say that there is no judicial oversight. In the time since the Supreme Court cleared the way for mandatory arbitration, courts have been occupied with creating a level playing field when employers make the signing of an arbitration agreement a condition of employment. If its terms weigh too heavily in favor of the employer, the agreement, or at least the offending part, may be ruled invalid.

Finding that an arbitration agreement was "utterly lacking in the rudiments of even handedness," one federal court refused to enforce an agreement that allowed only the employer to choose the panel from which an arbitrator would be selected. Supposedly the parties were to achieve a fair result by using an alternate strike method to arrive at one arbitrator, but, given that the whole pool was selected by the employer with no constraints, "an impartial decision maker would be a surprising result." It may be possible to avoid this particular defect by stating in the agreement that the parties will use an arbitration service that takes measures to find an unbiased arbitrator having no potential conflicts of interest.

Paying the Costs

Splitting the costs of arbitration evenly between the parties may seem reasonable on its face, but some courts have invalidated such clauses as being too burdensome for individual employees. Aside from considering the respective abilities of the parties to pay what can sometimes be substantial up-front costs for arbitration, there is a concern that the prospect of shouldering those costs has a "chilling effect" on employees' rights to have their grievances heard. Alternative approaches include payment of all costs by the employer, waiver of the employee's share on a case-by-case basis if it is beyond the employee's means, or capping an employee's share at the level of costs that would be incurred in court.

To Arbitrate or Not?

Even before an arbitration clause is agreed to, and perhaps later scrutinized by a court, the parties need to consider some distinctions between mandatory arbitration and litigation. Since it is easier to request arbitration than to file a formal complaint in court, use of arbitration may mean an increase in disputes to be resolved. A decision maker in arbitration, if he or she is familiar with the industry in question, could understand complex issues better than a jury would. In arbitration, the dispute itself and the terms of any award frequently are kept confidential, affording the parties more privacy than a trial in open court. Finally, some of the same features that make arbitration a simpler and more streamlined approach, like limited fact finding and having no right to appeal, could weigh in one party's favor and against the other, depending on the circumstances of the case.

In San Diego, there are many casinos. The below example happened in Las Vegas. Local casinos also may offer lines of credit or other incentives to gamble. In San Diego County alone, the casinos include Sycuan, Barona, Viejas, Harrahs and many others. Our law firm of Pinkerton, Doppelt & Associates, LLP offers a complimentary consultation by phone or e mail. Our law firm does not endorse, represent or support any of the casinos listed above and these are used for illustrative purposes only and were not the casino in the below example and no allegations regarding the misconduct in the below case is attributed to these casinos.

Steven was a multimillionaire businessman with a fondness for high-stakes gambling. His reputation as a high roller led a Las Vegas resort to recruit him to gamble at the grand opening of its new casino. The enticement from the casino was a $2 million line of credit.

When Steven was just getting warmed up in what figured to be a long stretch of gambling, casino officials informed him that he had used up the line of credit, plus several million dollars of his own money. Steven had been gambling not with chips but with a "player card," and cameras had been recording his betting results. He strongly disputed how much in the red he really was, but the casino made him leave the premises.

Steven sued the gaming company that operated the casino, and a jury added more millions to his net worth. He convinced the jury that the casino's goal on opening night was to improve its bottom line by forcing him to quit while he was in the hole. The casino officials knew that an experienced gamer like Steven could recoup his losses, and then some, in the same night, so they created the conflict over the amount of the gambling debt as an excuse to ask Steven to leave. This breached the agreement between the parties.

Evidence of underhanded tactics of the casino no doubt made an impression on the jury. Steven produced gambling debt invoices that the casino had generated even before he began to gamble. The videotapes from the night in question, which were key to proving just how much gambling debt Steven had incurred, had been destroyed by the casino. These tactics cast a cloud of suspicion over the casino's version of the events.

In San Diego, there are many banks which issue credit cards. It is very important to review all of the terms and conditions of any credit card offer before and after approval. This is not a San Diego case, however the issue which arises has also arisen for many San Diego residents. Our law firm of Pinkerton, Doppelt & Associates, LLP offers a complimentary consultation by phone or e mail. If we cannot assist you, we will refer you to the San Diego County Bar Association Lawyer Referral Service which can refer a qualifiied attorney in the specific area of law you require.

In a variation on the typical "bait-and-switch" scheme, a bank made a promotional offer of a "no annual fee" credit card, then changed the terms mid-year to require such a fee. A credit card holder sued the bank under the federal Truth in Lending Act (TILA). She alleged a violation of the requirement in TILA that an issuer of a credit card disclose the terms of the card accurately and without misleading statements. A federal court allowed the lawsuit to continue.

Both the advertisement soliciting customers for the credit card and the card holder agreement stated that no annual fee would be charged, but the agreement also stated more generally that the bank had the right to change any of the terms at any time. The bank maintained that the latter provision gave it the right to impose an annual fee whenever it wanted.

In ruling for the credit card holder, the court found that a reasonable consumer was entitled to assume that the issuer of the credit card would refrain from imposing an annual fee for at least one year. Given the apparent intent of the bank to begin an annual fee after the "bait" had been taken, the statement of "no annual fee" was misleading and in violation of TILA. If the bank had wished to reserve the right to impose an annual fee later, notwithstanding the "no annual fee" solicitation, further clarification would have been necessary to comply with TILA.

In San Diego, there are many companies competing for business. Attorney marketing and advertising are regulated by the State Bar of California. Attorneys also have to comply with the federal law as below. Our firm of Pinkerton, Doppelt & Associates, LLP is located in San Diego, California and is a Limited Liability Partnership registered with the State Bar. If you have any legal questions, please feel free to call or e mail us.

The Federal Trade Commission Act prohibits advertising that is untruthful, deceptive, or unfair, and it requires advertisers to have evidence to back up their claims. There are also other federal laws applicable to advertisements for specific types of products and state laws that apply to ads running in particular states.

Unfairness

An advertisement is unfair if it causes "consumer injury." The Federal Trade Commission (FTC) uses a three-part test to determine if a consumer injury has occurred or is likely to occur as the result of an advertisement: (1) the injury must be "substantial"; (2) the injury must not be outweighed by any offsetting consumer benefits; and (3) the injury must be one that consumers could not reasonably have avoided. An injury may be substantial because of monetary harm or unwarranted health and safety risks. More subjective effects, such as offending the tastes or opinions of consumers, generally will not constitute a substantial injury. The FTC will also consider whether a challenged practice violates established public policies and whether the conduct is immoral, unethical, oppressive, or unscrupulous in deciding whether it is unfair.

The Act recognizes that, in general, the government expects the marketplace to be self-correcting, with informed consumers making purchasing decisions without regulatory intervention. The FTC may step in, however, when sellers use practices that distort free market decisions, such as by withholding critical information from consumers or pitching questionable products to highly susceptible and vulnerable classes of purchasers such as the terminally ill.

Deception

An ad is deceptive if it contains a statement or omits information that is material and is likely to mislead consumers. Information is material if it is important to a consumer's decision to buy or use a product. Examples include representations about a product's performance, features, safety, price, or effectiveness.

The FTC will scrutinize an ad for deceptiveness from the point of view of the typical consumer who sees it. The focus is on the whole context of an ad, rather than whether certain words are used. Sometimes what an ad does not say is most important. If the ad is for a collection of books, it is deceptive to withhold from consumers the fact that they will receive only abridged versions of the books. An ad that says "this product prevents colds" and one that says "this product kills germs that cause colds" both claim to prevent colds, but the first claim is expressed, and the second is implied. The FTC expects an advertiser to be able to back up both types of claims with proof and to have such proof before an ad runs.

Backing It Up

Substantiation of a claim in an ad means that there must be a reasonable basis for the claim in the form of objective evidence. The kind and amount of evidence depend on the claim, but at the very least the advertiser must have the level of evidence it purports to have. If the ad boasts that "two out of three doctors" recommend a product, the advertiser must be able to produce a reliable survey to prove the claim. For more general representations, the required level of proof is determined by factors such as what experts in the field think is necessary. Health and safety claims, in particular, must be supported by competent and reliable scientific evidence. As flattering as they may be, testimonials from satisfied customers usually are insufficient to substantiate a claim requiring objective evaluation.

Comparative Ads

The policy of the FTC actually is to encourage the naming of or reference to competitors, so long as there is clarity and such disclosure as may be needed to avoid deception of the consumer. Even ads that disparage the competition are permitted if they are truthful and not deceptive. The FTC requires neither less nor more substantiation for comparative ads than for other advertising.

Enforcement

The FTC marshals its resources in order to pay closest attention to ads that make claims about health or safety ("Acme water filters remove harmful chemicals from tap water"), and ads that make claims that consumers would have difficulty checking out for themselves ("ABC hairspray is safe for the ozone"). The FTC also concentrates on national rather than regional or local advertising, patterns of deception rather than isolated disputes, and cases that pose the greatest threats of widespread economic injury.

Depending on the nature of the violation, the FTC or the courts can choose from a variety of remedies. These include cease and desist orders, civil penalties, orders to make refunds to consumers, and informational remedies such as running a new ad to correct misinformation in the original ad. Other federal legislation allows businesses to sue competitors for making deceptive claims in advertising.

San Diego has many banks and credit unions. These include Wells Fargo, Washington Mutual, Bank of America, Union Bank, San Diego County Credit Union and others which have both office locations in San Diego as well as on line banking. In addition, there are many on line banks which do not have branches in San Diego, California. Our firm of Pinkerton, Doppelt & Associates, LLP does not endorse or represent any of these institutions and the links are provided for reference purposes only. If you have any questions, please feel free to e mail us. There are advantages and disadvantages of using on line banking.

Banks that rely on the Internet and other low-cost ways to provide service, as opposed to "bricks and mortar" branch offices, can save on expenses and pass the savings along to customers in higher returns on deposits and lower interest rates on loans. Online banking also gives customers the convenience of being able to monitor their accounts and complete transactions around the clock, without waiting for mailed statements or being limited by office hours.

The flip side of online banking is that, if a problem arises, you cannot sit down face-to-face with someone from the bank to resolve it. There is also a premium on doing research to check out the legitimacy of an unfamiliar and remote institution before you entrust it with your money and private information. A good place to start is the "About Us" section of a bank's website, which should at least give basic contact information. If it does not, that in itself should raise suspicions. Other warning signs include names or websites that are only slightly different from those of well-known institutions and rates of return that are far out of line with what other banks are offering. It is a good idea to confirm that an institution is federally insured by contacting the Federal Deposit Insurance Corporation or searching its "Institution Directory" at www3.fdic.gov/idasp.

Like any bank customer, users of online banking institutions are well-advised to safeguard private identification information, keep good records, and monitor transactions and balances regularly. Online banking customers also have the protection of federal laws such as the Equal Credit Opportunity Act, the Truth in Lending Act, and the Truth in Savings Act. Those who decide to do their banking solely in front of a computer screen especially should know about the Electronic Fund Transfer Act, which deals with consumer rights involving electronic banking transactions.

In San Diego, many residents have had their identity stolen creating negative information on their credit bureau reports. Some San Diego residents have incorrect information on their credit reports due to circumstances described below which is not a San Diego case. The three major reporting credit agencies are TransUnion, Experian and Equifax. If you have any legal questions, please feel free to contact our firm of Pinkerton, Doppelt & Associates, LLP by e mail or phone.

Judy discovered that her credit report from a large credit reporting agency erroneously included about a dozen accounts for a different person, also named Judith. The report identified Judy as using that person's name as an alias. Unfortunately, the "other" Judith, who did exist, had a checkered debt-paying history that was erroneously presented as Judy's in the credit report.

Judy's own spadework revealed that the credit reporting agency had merged her information with that of the second Judith because they had similar first names, were born in the same year, were from the same part of the country, and, most importantly, their Social Security numbers differed by only one digit. This initial computer mistake was bad enough, but what ultimately led to a very large damages verdict for Judy was the inadequate response of the reporting agency once Judy had brought the errors to its attention.

The agency deleted some of the accounts that did not belong in Judy's report, but it kept most of them after supposedly verifying them with creditors. This "verification" was very superficial and did not convey to the creditors the information Judy had provided. In effect, the agency simply asked each creditor, "Is this what you reported?" Fully three years after Judy notified the reporting agency of the erroneous information in her report, some of it remained, and the undeserved stain on her credit was as obvious as ever. To add insult to injury, some of the deleted information from the second Judith even reappeared on Judy's report.

The situation came to a head when the erroneous credit report caused Judy to be denied a mortgage. By supplying still more information to the agency, including a supportive letter from the "other" Judith, and contacting creditors herself, Judy eventually cleaned up her credit report and got out from under the shadow of a stranger's unpaid debts. By then, however, she was a wreck emotionally, and the damage to her credit reputation was only beginning to be restored. A jury verdict made the credit reporting agency pay for these injuries, but sent an even louder message in a large award of punitive damages.

The success achieved in Judy's lawsuit was largely due to her own diligence. The steps she took are practically a blueprint for what someone should do when credit reporting errors are made and then left uncorrected by an agency. It took years in her case, but Judy prevailed in the end by making telephone calls, keeping notes and documents, contacting creditors directly, and even enlisting the aid of the debtor whose poor credit history had appeared in Judy's credit report.

In San Diego, there are many employers with 15 or more employees. It is crucial to follow all State and Federal laws relating to all facets of employment. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with many legal problems. Please e mail us directly with any questions.

The Americans with Disabilities Act (ADA) prohibits disability discrimination in employment for employers with 15 or more employees. The prohibition is far-reaching and covers hiring, firing, and everything in between, such as promotions, benefits, and harassment in the workplace. The smallest of businesses are not affected by the ADA because of the 15-employee threshold for coverage. The ADA does apply, however, to many of the roughly 25 million small businesses in the nation.

Who Is Protected?

The ADA protects three categories of individuals: those with a physical or mental impairment that substantially limits one or more major life activities (like sitting, standing, or sleeping); those with a record of such an impairment, such as a person who had debilitating cancer but is now in remission; and those who are regarded by employers as having such an impairment, even though the individuals otherwise are not so impaired as to be "disabled" under the ADA. Regardless of the category, the ADA protects only persons who are qualified, that is, they meet job-related requirements and can perform essential functions for the job, with or without a reasonable accommodation.

Hiring

While an employer can ask an applicant a wide range of questions concerning job qualifications, the ADA does not allow medical examinations or questions about disability until the employer has made the applicant a conditional job offer. An exception is recognized for questions directed to an apparently disabled applicant about whether a reasonable accommodation will be required.

After a job offer is made, an employer can ask any disability-related questions and require medical examinations, so long as these requirements apply to everyone in the same job category. For example, if, during a medical examination required of all employees in a job involving the use of dangerous machinery, it is revealed that an applicant has frequent and unpredictable seizures, the employer can withdraw a job offer to that individual.

Medical Information

Once a person is on the job, the ADA allows required medical examinations or questions about a disability only where there is a reasonable belief, based on objective evidence, that a particular employee will not be able to perform essential job functions or will pose a direct threat because of a medical condition. As an example, if a normally reliable employee has told her employer that a new medication she takes makes her lethargic, and she begins to make many mistakes, the employer can ask her how long the medication can be expected to affect job performance.

Reasonable Accommodation

The ADA differs from most other employment discrimination laws in imposing an accommodation duty on employers. If a disabled person needs a reasonable accommodation in order to apply for, or perform, a job, the employer generally must provide it unless to do so would create an undue hardship. An undue hardship means significant difficulty or expense, based on an employer's resources and operations.

Most accommodations are not expensive or burdensome. A diabetic employee may need regular breaks to eat properly and monitor blood sugar and insulin levels, or a blind employee may need someone to read information posted on a bulletin board. If more than one accommodation will work, the employer may take the option that is less costly or easier to provide.

In addition to the undue hardship defense, an employer need not provide an accommodation which:

* assists an individual off the job;

* removes or alters the essential functions of a job;

* lowers production or performance standards; or

* excuses violations of rules on good conduct.

Helpful Handbook

The Equal Employment Opportunity Commission, which is charged with enforcement of the ADA, has issued a handbook to help small businesses comply with the ADA. The handbook provides many examples of factual situations with which small businesses could be confronted.

In San Diego, there are many different security firms. These include K Tech Security, Brinks, Pinkerton, and many others. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse any agency however the partner at our law firm is a distant relative of the original Pinkerton who founded the detective agency. If you or a loved one has been injured or killed by a security guard, please feel free to e mail us.

n a case, a manufacturing company contracted with a security firm to provide a security guard. The guard shot and killed an individual who was trespassing, but not for criminal purposes, on company property, after the person had obeyed the guard's order to lie on the ground. The company argued that it could not be held liable for the negligent acts of an independent contractor, but a state supreme court ruled otherwise.

The court agreed that the security firm and its guard were independent contractors. The manufacturing company's downfall was an exception to the rule of no liability for acts of independent contractors. If the work to be performed is inherently dangerous, the work can be delegated to an independent contractor, but the duty to use reasonable care cannot be avoided by the employer. Work is inherently dangerous when it involves a foreseeable risk of physical harm to others and requires special precautions.

In the case of the trigger-happy security guard, who was armed and instructed to "deter" thieves and vandals, dangerous confrontations between the guard and persons entering the property were contemplated. In the context of such danger, the independent contractor status of the guard became a mere legal technicality that did not shield the manufacturing company from liability.

In San Diego, many residents find services on the internet. There are many search engines such as Google, Yahoo, MSN and many others. Our law firm of Pinkerton, Doppelt & Associates, LLP suggests you investigate all companies with the San Diego Better Business Bureau before entering into a contract. If the seller is an individual, as in the example below, this would not be an effective strategy. In the below example, the buyer would have to sue not in the San Diego Superior Court [if he was a resident of San Diego County] but in the state where the seller lived. This would be expensive and time consuming. Our firm suggests having an expert inspect any vehicle prior to purchase if you are not an expert in this area. Similarly, if you have a question regarding the law, please feel free to e mail or call our firm. We would be happy to assist.

Robert found just the excavator he wanted advertised on an Internet auction site. Before making the successful bid, he contacted the seller through e-mail and received assurances from her that the product was in good condition. Robert then traveled to the seller's home, which was several states away, and bought the excavator. When the equipment did not perform as expected and the seller did not respond to Robert's request for a partial refund, Robert sued the seller in his home state.

Robert's lawsuit failed because the seller was not subject to the jurisdiction of the courts in Robert's home state. For a nonresident to bring herself within the reach of a state's "long-arm" jurisdiction, she must purposefully have benefited from the privilege of doing business in that state. Perhaps the seller could have foreseen that residents of any state might bid on the excavator, but that was insufficient to bring her into the courts in Robert's state. She had no control over who would ultimately be the winning bidder, nor could she exclude bidders from particular jurisdictions.

Also weighing against subjecting the seller to litigation was the isolated nature of the transaction and the fact that she was not a commercial seller and was using a third party's site. A different result might have been achieved against a business that used its own website to advertise itself and make transactions across state lines.

In San Diego, there have been many law suits in the San Diego Superior Court over the taking of land by the government. In San Diego, this is not unusual for the building of highways, roads, schools and private development. The forcible eviction from your home, even when compensated, can be devastating. If you have any questions about this or any other legal issue, please feel free to e mail our law firm of Pinkerton, Doppelt & Associates, LLP. If our firm cannot assist you in your legal matter, we would be pleased to refer you to the San Diego County Bar Association Lawyer Referral Service.

The power of government to take private property for a public use, with payment of fair compensation, has been nearly unassailable in our legal system. In most condemnation cases, the right to take the property is a foregone conclusion, and the parties litigate only the amount of compensation. Courts generally have deferred to the government's articulation of a public purpose for the taking, even when private parties also benefit.

In recent years, there has been a trend toward closer scrutiny of a proposed condemnation to find a paramount public purpose, and even to stop the proceedings where one is lacking. Property owners targeted for a taking are receiving a more sympathetic hearing when they contend that the true beneficiary of the proceedings is not the public but simply another private party with designs on the property.

Although they were largely unsuccessful, challenges to takings as lacking a public purpose first arose in urban renewal cases. The government would condemn blighted property so that it could be redeveloped, usually by private developers. The government could point to the overriding public benefits from such revitalization of property and could successfully argue that benefits to private parties were incidental.

In successful attacks on use of the condemnation power, it is harder to find the public use and easier to see private profit as the motivation for the taking. For example, in one case, the developer of an automobile racetrack wanted some neighboring land for a parking lot, but the company that owned the land did not want to sell it. The developer reached an agreement with a regional authority that had condemnation powers, by which the developer would pay for proceedings to condemn the land in return for getting the property from the authority immediately after the condemnation. A state supreme court found that this transparent arrangement to take land so that it could benefit the racetrack developer was a misuse of the eminent domain power. As the court put it, that power "is to be exercised with restraint, not abandon."

In another successful challenge to a condemnation, a city tried to take land owned by a church in order to turn the land over to a major discount retailer. The property had been vacant for a decade, despite having been declared a blighted area. The city tried to use blight removal and redevelopment of the property to justify its actions. This reasoning was undermined by the city's denial of permits sought by the church for more church buildings on the property, even though such a use would have eliminated blight just as well as the commercial use favored by the city.

The more believable motive for the city was its desire to generate more revenue by putting a taxable business on what had been tax-exempt church property. But the city had other ways to generate revenue. As to both of the city's ostensible goals--blight removal and generation of revenue--the city was "using a sledgehammer to kill an ant." In issuing an injunction against the condemnation proceedings, the court characterized the condemnation as resting only on "the desire to achieve the naked transfer of property from one private party to another."

San Diego has many different types of courts. There is the San Diego Superior Court and the San Diego United States District Court and some others. In addition, in California, there is the California Supreme Court and the Court of Appeals. In Washington, D.C. is the United States Supreme Court.

The U.S. Supreme Court has given a victory to freelance authors of newspaper and magazine articles, and a defeat to some major publishers of their work. The publishers hired the authors as independent contractors who would contribute articles to what is known in copyright law as a "collective work," that is, a newspaper or magazine. Under federal copyright law, the publishers were the owners of the copyright in the collective work, giving them the right to reproduce and distribute the contributions as part of the collective work or any revision of that work. The writers themselves, however, retained the rights to their individual articles.

The dispute arose when the publishers, without obtaining the authors' permission or agreeing to provide extra compensation to them, licensed the rights to copy and sell articles to a computerized database of periodicals and to the producer of CD-ROM products. When the authors claimed an infringement of their copyrights in their articles, the publishers defended by arguing that making the articles available on line or in a CD-ROM form constituted simply a "revision" of the collective work that was within the copyright of the collective work held by the publishers.

The Supreme Court sided with the writers. The newly created databases no longer presented and distributed the articles as part of the collective work in which they first appeared, or as part of a revision of that work. Instead, the articles stood alone and out of their original context. Each article had become merely a minuscule part of an ever-expanding database. As the Court put it, "The database no more constitutes a 'revision' of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a 'revision' of that poem[.]" Therefore, the electronic reproduction of the authors' works could not be allowed without their permission.

For all of your legal needs, please feel free to consult our law firm of Pinkerton, Doppelt & Associates, LLP and, if we cannot assist you, we can offer your bar certified referral services. Please feel free to e mail us as well.

San Diego, California is a very technologically advanced area. There are, in San Diego, may satellites for televisions. In 1996, the Federal Communications Commission (FCC) issued a rule that prohibited certain restrictions on the use of antennas designed to receive direct broadcast satellite service or television broadcast signals. Two years later the FCC expanded the rule to cover lease provisions where the antenna user was the tenant. Associations representing owners and managers of real estate unsuccessfully challenged the expanded rule in federal court.

The argument that the FCC had overstepped the bounds of the authority given to it by Congress failed. Congress has granted the FCC very broad regulatory authority so that it can keep pace with rapidly evolving technologies. As for "direct-to-home" satellite services, in particular, the FCC has exclusive regulatory jurisdiction, and has been charged by Congress to issue regulations to prohibit restrictions that impede viewers from using necessary devices.

In the view of the federal court, it was only a small and appropriate step for the FCC to extend its original authority over local or state land-use restrictions, restrictive covenants, and homeowner association rules to cover provisions in a lease. Given its mandate from Congress to prohibit restrictions on the provision of a regulated means of communication, the FCC can exercise its jurisdiction over a landlord who creates such a restriction even though, in so doing, the FCC alters property rights created under state law.

The FCC's preemptive power over satellite dishes does not leave landlords with no say in the matter whatsoever. First, since the FCC rule only applies to property within the exclusive use or control of the antenna user, a tenant does not have the unfettered right to put equipment on outside walls, rooftops, and other such areas where he may have access but not possession and exclusive control. Second, the rule itself states that a restriction "impairs" installation, maintenance, or use of an antenna if it "unreasonably" delays or prevents such use, "unreasonably" increases the cost of such use, or prevents reception of an acceptable quality signal. Thus, reasonable measures by landlords have their place. Finally, restrictions that would otherwise be prohibited are permitted where they accomplish a safety objective without singling out antennas, or they are necessary to preserve certain historic properties.

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San Diego, California has many small business owners and employees. In fact, in San Diego, the number of small business firms are much more numerous than large business firms. The Internal Revenue Service has lightened the paperwork load for about a million small businesses. Employers are required by the Internal Revenue Code to deduct and withhold Social Security and income taxes from the wages paid to their employees. The withheld taxes are then held by the employer in trust for the benefit of the United States. Depending on the amount of employment taxes withheld, at various time intervals an employer must deposit the withheld amounts in an approved bank.

Before the IRS issued the new regulation, an employer could avoid having to deposit accumulated employment taxes every month if the total amount of such taxes was less than $1,000. The new regulation raises that threshold to $2,500. For quarterly and annual return periods beginning January 1, 2001, businesses with less than $2,500 in employment taxes for a return period may pay the full amount with the regular return for that period, rather than having to make monthly deposits.

At Pinkerton, Doppelt & Associates, LLP we are not accountants however we can refer to accounting professionals and also advise you on legal strategies and techniques. Please feel free to e mail our firm.

San Diego, California has a major league baseball team called the San Diego Padres. At the stadium, not all areas are protected from either a foulr ball or a hit ball. As such, it is important to understand the below facts if you attend baseball games. To minimize risk of injury, it is advisable to sit in seats which are adequately screened. You can view these seats on the link provided by the website to the Padres above. This ruling does not include football games and there is also the San Diego Chargers which have their stadium in San Diego as well.

A state court has overturned a $1 million jury verdict for a young girl who was injured when part of a broken bat struck her as she sat in the stands at a major league baseball game. The girl was seated behind a net that extended down the third base line, but the bat fragment curved around the net and hit her.

The girl argued that baseball officials were negligent in not having more protective screening for spectators. However, most courts apply a more lenient "limited-duty" rule to America's Pastime and this court was no exception. The majority of baseball fans prefer to be close to the action, with no protective screen that would block their view and prevent the possibility of catching a batted ball. Baseball teams reasonably accommodate this majority of their consumers, while providing protected seats behind home plate for those more concerned with safety. Under the limited-duty rule, when a stadium owner has made adequately screened seats available for all those desiring them, it has fulfilled its duty as a matter of law and it will not be liable for spectators injured by an object from the field.

The girl also asserted that the stadium owner had a duty to warn spectators about projectiles from the field. The court rejected this basis for liability because the risk involved was already well known by spectators. As a general rule, there is no duty to warn of open and obvious dangers. Even so, the stadium owner in this case had warned the fans with an announcement, a notice on a video board, and fine print on the tickets. Making no distinction between a broken bat and a baseball, the court quoted the observation of another court that "[n]o one of ordinary intelligence could see many innings of the ordinary [baseball] league game without coming to a full realization that batters cannot and do not control the direction of the ball."

If you have any questions about this legal matter, please contact our law firm of Pinkerton, Doppelt & Associates, LLP or e mail us.

San Diego, California is a state however San Diego small business owners must comply with federal law as well. Federal law is supreme over state law. In San Diego, small business owners must comply with all applicable federal laws.

The federal Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the most widely applicable federal laws that prohibit discrimination in employment. The smallest of businesses are not subject to most of these statutes. Title I of the Americans with Disabilities Act (ADA), which prohibits employment discrimination against qualified individuals with disabilities, applies only to employers with 15 or more employees. The same is true for Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits job discrimination based on race, color, religion, sex, and national origin. The threshold for coverage under the Age Discrimination in Employment Act (ADEA) is 20 or more employees. The Equal Pay Act, which is intended to prevent wage discrimination between men and women in substantially equal jobs in the same establishment, applies to most employers with at least one employee.

In calculating the number of employees for purposes of coverage of these statutes, all employees are counted, including part-time and temporary workers. Independent contractors are not included, but the distinction between such workers and employees is often difficult to draw without the advice of legal counsel. Situated between the businesses so small as to be excluded from coverage and the Fortune 500 are thousands of small businesses to whom the EEOC-enforced laws apply.

Procedures

Anyone believing that his or her employment rights have been violated because of the types of discrimination covered by the federal laws, or because of retaliation for opposing job discrimination, filing a charge, or participating in proceedings under those laws, may file a charge of discrimination with the EEOC. In most areas of the country, the charge must be filed within 300 days from the date of the alleged discrimination. The EEOC will notify the employer within 10 days of receiving a charge.

If a charge is eligible, the EEOC will give the parties an opportunity to take part in voluntary, confidential mediation to reach mutually agreeable solutions. If all parties agree to participate, neutral mediators will work with them to that end. In the event that mediation is unsuccessful, the charge is referred for investigation by the EEOC.

An EEOC investigation may involve a responsive statement from the employer, collection of documents by the EEOC, and visits and interviews by EEOC personnel. If the EEOC ultimately dismisses a charge, the charging party is notified and has 90 days to file a lawsuit. A finding by the EEOC of reasonable cause to believe that discrimination has occurred will lead to an invitation to the parties to enter into conciliation discussions. If they fail, the EEOC and/or the charging party may bring suit.

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San Diego, California follows the federal law in regards to COBRA coverage. Below is an example of what can happen to an employee who is terminated from employment regarding continuation of health insurance. For many San Diegan's, health insurance is not affordable and sometimes, due to medical issues and medical conditions, may not be obtainable. As such, COBRA coverage may be the only available coverage. At Pinkerton, Doppelt & Associates, LLP, we can advise you of your COBRA rights.

Shortly after he was fired from his job, Monty got married and left town for a three-week honeymoon. While he was away, his former employer sent him a notice about his right under a federal law, called COBRA for short, to elect to continue his health-care insurance coverage. COBRA requires that such a written notice be provided within 14 days of a termination from employment, but neither the statute nor regulations spell out what adequate notice entails.

In Monty's case, he never got the notice, which was sent by certified mail, return receipt requested. When Monty went to the post office to claim the letter, postal workers could not find it. Eventually, the COBRA notice was found, but then it was returned to the sender with an erroneous indication that Monty never claimed it. By that time, Monty had begun a new job and was receiving treatment for a new medical condition. His new employer's insurer denied coverage for this treatment as a preexisting condition. That left Monty without coverage for significant medical expenses.

Monty was unsuccessful when he sued his former employer under the Employment Retirement Income Security Act (ERISA) on the ground that it had not given him the required written notice about COBRA insurance coverage. Although it was through no fault of his own that Monty never received the notice, his former employer had made a good-faith attempt to get the written notice to him, and that was all that the law requires. The employer used certified mail, which is designed to enhance the prospects for an individual's receipt of delivery, and it was not responsible for the letter going undelivered.

San Diego, California has many companies which register their domain name. In our firm, Pinkerton, Doppelt & Associates, LLP we have registered the domain name of www.help411.com. This registration is very important since many companies, both big and small, market their website addresses and spend a lot of money and time on this. In addition, stationary and other marketing materials have the website address. It is critical to make certain that the registration process is complete.

In one case, a small partnership whose sole line of business appears to have been registration of hundreds of Internet domain names registered an Internet address name that was virtually identical to the name of a famous winery. When the winery got nowhere with demands that the domain name be released or transferred to it, it sued under the federal Anticybersquatting Consumer Protection Act (ACPA). Cybersquatting is the registration of a domain name of a well-known trademark by someone who does not hold the trademark but hopes to profit from selling the name back to the trademark owner.

Unfazed by the lawsuit, the partnership went on the offensive. On a website that used the name in dispute, the defendant published under the heading "Whiney Winery" a discussion of the lawsuit and an attack on the winery and corporations generally. This online response to being sued was the first and only time that the registrant of the disputed domain name actually used it.

A federal court awarded a judgment to the winery under the ACPA. There was no question that the winery had a valid trademark that was famous and distinctive, and that the domain name registered by the defendant was identical or confusingly similar to the mark. The defense rested instead on the contention that the partnership did not have the bad-faith intent to profit from another's mark, as is required for liability under the ACPA.

The court weighed various factors that go into deciding if "bad-faith intent to profit" is shown, and the partnership did not fare well. When it registered the domain name, it had no intellectual property rights in the name, and it never had used the name in a legitimate offering of goods or services. Although it had not yet offered to sell the domain name to the winery, it had made such offers to sell names to other trademark owners, generally accepting no less than $10,000 per name. The partners admitted that they hoped the winery eventually would contact them so that they could "assist" the winery in some way. The icing on the cake in establishing bad faith was the hosting of a website and using the winery's trademarked name as a forum for attacking the winery's goodwill and tarnishing its trademark.

In San Diego, California and other states, the federal Government has been using tax incentives to help preserve historic buildings. San Diego has many historic buildings in the Gaslamp and other areas of San Diego. San Diego is known for its architectural style and buildings. The San Diego Historical Society is a good source of information and has a very informative website.

Originally, federal law allowed accelerated depreciation on rehabilitated buildings, but subsequent changes have made preservation and revitalization efforts even more attractive to taxpayers. Today, there is a general business credit equal to 20% of qualified rehabilitation expenses for a certified historic structure, or a 10% tax credit for the qualified rehabilitation of nonhistoric, nonresidential buildings first placed into service before 1936. Eligibility for the tax incentives is determined by the National Park Service. Tax credits are often more beneficial to taxpayers than deductions, since every dollar of a tax credit reduces the amount of income tax owed by one dollar.

The 20% credit for the rehabilitation of a certified historic structure applies to commercial, industrial, agricultural, rental, or residential properties, but not properties used exclusively as the owner's private residence. A certified historic structure must be a building, as opposed to another type of structure. To have the required historic status, the building must be either listed individually in the National Register of Historic Places or located in a registered historic district and certified as being of historic significance to the district.

Eligibility for the 20% credit also depends on meeting some additional requirements. For example, the building must be depreciable, that is, used in a trade or business or held to produce income. The rehabilitation must be substantial, generally defined as entailing expenditures over a two-year period exceeding the greater of $5,000 or the adjusted basis of the building and its structural components. Qualified rehabilitation expenses include such items as architectural and engineering fees, site survey and development fees, legal expenses, and other construction-related costs, so long as they are added to the basis of the property, are reasonable, and are related to services performed.

The owner of the rehabilitated building must hold it for five years after completion of the rehabilitation, or pay back all or part of the 20% credit. A sale in the first year means that the entire credit is recaptured. The recapture amount is reduced by 20% per year for properties held between one and five years.

The 10% credit for nonhistoric buildings constructed before 1936 shares some of the requirements for the 20% credit, such as that the rehabilitation be substantial and the property be depreciable. However, only buildings rehabilitated for nonresidential uses qualify for the 10% credit. In addition, so that the identity of the original building is not lost in the process, projects undertaken for the 10% credit must meet specific tests based on retention of minimum percentages of the building's walls and internal structural framework.

San Diego has over 1,000,000 residents. Many San Diego residents are on lists of different companies. San Diego residents have to be careful of the companies who keep lists selling their personal information and, in some cases, where it is stolen by a third party. One example of stolen customer lists is below.

Home food service companies sell and deliver food products and appliances to their customers, many of whom later reorder more products. When a home food service company bought a customer list of one of its competitors, what might have been a competitive advantage instead became a legal headache. The list had been stolen and the food service company that bought it knew it was stolen. This can be considered receiving stolen property under the California Penal Code Section 496.

The company whose list got into the wrong hands sued the purchaser of the list for misappropriation of a trade secret. Some courts have refused to recognize customer lists as protected trade secrets when they contain information that is readily available from public sources. The essence of a trade secret is that it has value because it is not easily ascertainable. The customer list for the home food service company was protected because of the time and effort that had been expended to identify particular customers with particular needs or characteristics. The defense that the list contained only information that was easily compiled was undercut by the fact that the defendant had paid a lot of money for it.

A state court found a violation of the law governing trade secrets. It ruled that monetary damages should be awarded to the plaintiff based on net profits earned by the defendant from improper use of the list. The court also barred the defendant from ever using the stolen list again.

Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with legal matters. Please feel free to e mail us. If we cannot be of assistance, we can refer you to the San Diego County Bar Association Lawyer Referral Service which offers a complimentary and confidential 30 minute consultation.

San Diego, California has many home owners and also has many tenants and landlords. As San Diego has over 1 million residents, many of them are renters. When an apartment or home is rented in San Diego, California, the landlords must abide by both federal and state law.

Landlords are free to use credit reports in evaluating prospective tenants, but they must follow requirements set out in the Fair Credit Reporting Act (FCRA). A new guidance has been issued that describes how the FCRA applies to landlords and what the consequences are for noncompliance. The guidance focuses especially on a landlord's obligation to provide an applicant with an "adverse action notice" when adverse action is taken based on information in the applicant's "consumer report."

A consumer report is a compilation of information about a person's credit characteristics, character, reputation, lifestyle, and rental history. A report is covered by the FCRA only if it was prepared by a consumer reporting agency (CRA). The major credit bureaus are CRAs, as are many tenant-screening services and reference-checking services. If a landlord uses its own employees to verify personal, employment, and previous landlord references, the FCRA does not apply.

The most obvious adverse action that will trigger the notice requirement is outright denial of a rental application. Something short of that can also constitute adverse action so long as it is prompted by information in a consumer report. For example, a notice must be given to applicants who are required by the landlord to: have a co-signer on the lease; pay a deposit not required for other applicants, or an unusually large deposit; or pay rent that is higher than for another applicant.

The essential contents of an adverse action notice are established in the FCRA. The notice must contain the name, address, and telephone number for the CRA that supplied the report, a statement that the CRA did not make the rental decision and that it cannot give the specific reasons for that decision, and notification that the consumer has rights to a free report and to dispute the accuracy or completeness of information in the report. Even landlords for whom a consumer report played only a minor role in the decision to take an adverse action must give the notice to the applicant. A written notice is the best proof of compliance.

Landlords are well-advised to stay in compliance with all FCRA requirements, including adverse action notices, as the consequences for noncompliance can be significant. For lack of required notices, a landlord can be sued by individuals in federal court and made to pay compensatory damages, punitive damages if the violations are deliberate, and attorney's fees. Federal or state agencies can also sue landlords and get civil penalties. An isolated and inadvertent failure to send a notice, however, will not result in landlord liability if the landlord has reasonable procedures in place to assure compliance with the FCRA.

Please feel free to contact our law firm of Pinkerton, Doppelt & Associates, LLP with your legal question or feel free to e mail us. We practice in estate planning and family law and would be pleased to assist with your legal matter.

In San Diego, California, a new business must get a nine-digit employer identification number (EIN) from the Internal Revenue Service if it either pays wages to one or more employees or files pension or excise tax returns. An EIN is like a Social Security number for a business. It is used when filing a federal tax return, as well as for correspondence with the IRS or the Social Security Administration.

In San Diego, for your convenience, we are attaching links to the Internal Revenue Service and Social Security Administration. You can also download the appropriate forms from these websites.

IRS Form SS-4 is an application for an EIN, with information on how to apply by mail or by telephone. The IRS now has a toll-free telephone number for getting an EIN: (800-829-4933).

Our law firm of Pinkerton, Doppelt & Associates, LLP is committed to giving personal service at an affordable price. We believe that by using our education, training and experience, we can help clients avoid problems with the non compliance of laws by advising as to compliance at the intitial formation of business entities. Please feel free to contact us by telephone or by e mail.

In San Diego, California, the Fair Labor Standards Act (FLSA) is the source of minimum wage, overtime pay, recordkeeping, and child labor standards affecting over 100 million private sector and governmental workers. To be covered by the FLSA, an enterprise must have employees whose work has at least an indirect connection to interstate commerce. In most cases, a firm must do at least $500,000 in business annually to be covered, although some entities, including hospitals, schools, and governmental agencies, are subject to the FLSA regardless of volume of business. While San Diego, California business entitities are also covered by State Law the Federal Law is also higher and supreme. As such, it is also important to know the State of California laws in relation to the State's Department of Labor.

Please feel free to contact our law firm of Pinkerton, Doppelt & Associates, LLP for any further legal assistance and also feel free to e mail our firm as well.

The FLSA is far-reaching, but it does have its limits. For example, it does not require pay for vacations, holidays, severance, or sickness, nor does it mandate meal or rest periods, holidays off, or vacations. When an employee is fired, the FLSA does not require a discharge notice, a reason for the discharge, or immediate payment of final wages. Assuming the employee is at least 16 years old, the FLSA also does not limit the number of hours in a day, or days in a week, that an employee may be scheduled to work.

Wages and Overtime

Workers covered by the FLSA currently are entitled to the minimum wage of $5.15 per hour and overtime pay that is at least one and one-half times their regular rate of pay after 40 hours of work in a workweek. Some minimum wage exceptions apply under specific circumstances to disabled workers, full-time students, workers under 20 in their first 90 days of employment, tipped employees, and student-learners. Wages required by the FLSA must be paid on the regular payday for the covered pay period. Employers cannot effectively reduce the wages of their employees below amounts required for the minimum wage or for overtime pay by making deductions from paychecks for such items as shortages, required uniforms, and tools of the trade.

Exemptions

For the FLSA to apply, there must be an employment relationship that is distinct from other arrangements, such as hiring an independent contractor. Even when it does apply, the FLSA contains many specific exemptions. The exemptions may be from overtime pay, from both the minimum wage and overtime pay, or from child labor provisions. Doubts about application of an exemption generally are resolved against the employer. Employers should scrutinize the exact requirements for an exemption before assuming it applies.

Some of the employees exempted from the overtime pay requirement are commissioned sales employees whose earnings average at least one and one-half times the minimum wage for each hour worked and certain computer professionals who make at least $27.63 per hour. Examples of workers exempted from both the minimum wage and overtime pay include employees of certain seasonal and recreational establishments and white collar employees in executive, administrative, professional, or outside sales positions who are paid on a salary basis.

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San Diego, California has been a "high tech" city for many years. In the age of online commerce, "signing on the dotted line" has for many transactions evolved into "clicking on the 'I agree' box." Many companies in San Diego use these methods for business transactions. The San Diego Superior Court website can be used to assist in finding cases in which this issue has been litigated.

The resulting "clickwrap" agreement may be just as enforceable in court as if the parties had solemnly written their signatures at the end of a paper contract. As with so many twists on conventional legal concepts that have been ushered in with the Internet, courts are having to adapt time-tested principles on formation of a contract to the computer age.

Our firm of Pinkerton, Doppelt & Associates, LLP is committed to assisting you with new developments on the law. We have a newsletter which changes daily in the areas of estate planning and family law. You can also e mail us with any questions.

In one case, a company paid thousands of dollars for sophisticated software. The company claimed that it was entitled not only to use the software but also to receive perpetual upgrades and support. As evidence of such a bargain, the company pointed to the purchase order for the transaction. The seller of the software countered by relying on a later clickwrap license agreement in the software itself that limited its liability to the price paid for the software.

The court ruled that the language in the clickwrap agreement that limited the seller's liability was binding. The buyer clearly had given its assent by clicking "I agree," just as if its representative had signed a standard contract. The only issue, according to the court, was whether clickwrap license agreements are an appropriate way to form contracts, and the court held that they are.

The court was aware of and sympathetic to the context in which most clickwrap agreements are created. The typical consumer, having paid a substantial sum for software, rushes it into the computer, clicks on "install" and scrolls past the fine print in the license agreement. Arriving at the "I agree" box, the customer clicks on it with hardly a thought. The lesson from this case is that the click of a mouse is the equivalent of the stroke of a pen.

Clickwrap agreements are no less enforceable than conventional contracts, but neither will they be recognized by courts if the basic elements of offer and acceptance are absent. From the early common law of England to American law today, promises become binding only when there is a meeting of the minds. As another court faced with a disputed clickwrap agreement put it, "[a]ssent may be registered by a signature, a handshake, or a click of a computer mouse transmitted across the invisible ether of the Internet."

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San Diego, California has over one million residents and most of these are employed. It is important to know what your legal rights are in any disciplinary situation. San Diego, California has different regulations than other states so it is crucial to have each individual case evaluated.

Two employees at a foundation wrote office memoranda stating that their supervisor was not needed on a project and that he had behaved inappropriately and unprofessionally. The foundation's executive director informed one of the employees that she wanted to meet with him and the supervisor. Feeling intimidated at the prospect of the meeting, the employee asked that his fellow complaining employee be present as well. When this request was refused, and the employee declined to attend the meeting alone, he was fired for insubordination.

The fired employee ultimately was found to be entitled to reinstatement to his position, with an award of back pay. The decision by a federal appellate court breaks new ground for non-union employees and employers, because the basis for the ruling is a principle previously associated only with union workers. It is settled law that an employer commits an unfair labor practice under the National Labor Relations Act if it denies a union employee's request to have a union representative present at an investigatory interview that the employee reasonably believes might result in disciplinary action.

The National Labor Relations Board has changed course several times on the question of whether this right also can be asserted by employees who are not in unions. In the case of the foundation employee, it answered that question in the affirmative, and the appeals court agreed.

The impact of the decision could well mean that in most cases a company should either allow an employee to have a co-worker present at a meeting that could be perceived as leading to disciplinary action or not have the meeting at all.

The right to have a co-worker present must be triggered by a request from the employee. Many employees, especially those not in a union, are unaware of this right and are unlikely to assert it. Managers and supervisors do not benefit from the ruling, as they are not "employees" as defined in the National Labor Relations Act. Non-union employees probably can only insist on being accompanied by a co-worker, rather than having a supervisor, manager, or outside representative present. The purpose of the right is to allow employees to engage in "mutual aid and protection." The rule applies only to a meeting that could lead to discipline, not a meeting whose purpose is simply to announce predetermined disciplinary action.

San Diego, California is considered by many to be a small town in many regards even though many people live in San Diego and the surrounding count. The local paper is the San Diego Union Tribune and this has many articles of a small town nature as well as a large town nature. Many articles are of interesting legal significance.

Another recent case involved a claim of defamation that was brought against the writer of a letter to the editor in a small-town newspaper. A news article in the paper reported on the upcoming closing of a downtown grocery that had been in business for 50 years. Three days later, the newspaper printed a letter to the editor that blamed the closing of the grocery store on the store's landlord. Calling him a "ruthless speculator," among other things, the writer accused the landlord of forcing the store out of business by charging "exorbitant rent." The letter stated that the landlord's "self-centered greed" caused the demise of the grocery. In any legal matter, it is important to obtain competent legal advice. The law firm of Pinkerton, Doppelt & Associates, LLP can help you with many matters. Please feel free to e mail us for a complimentary consultation.

The landlord responded to the letter to the editor with a defamation action against its author. The lawsuit was dismissed because the state constitution's free expression clause shielded the letter writer from liability. To distinguish between statements of opinion, which are protected, and assertions of fact, which are not, the court looked at all the surrounding circumstances. In each instance, the offending parts of the letter were found to be opinions. The context of the letter as a whole showed it to be an exercise in venting frustrations and opinions about the loss of a valued downtown business. Finally, the fact that the letter was an expression of protected opinion was confirmed by its very location in the newspaper's opinion pages, a traditional forum for the robust exchange of viewpoints.

San Diego, California has had some landmark cases involving churces and local land use officials. Findlaw is an on line research service for members of the public and Thompson-West is a service for legal professionals.

In disputes between churches and local land-use officials, Congress has tipped the scales in favor of the churches with recently passed legislation. Although its full impact is being sorted out by the courts, the law prohibits any land-use regulation that has the effect of imposing a substantial burden on the exercise of religion, unless the government proves that such a burden furthers a compelling governmental interest and is the least restrictive method of doing so.

The new measure already has been a potent weapon for religious groups in conflicts with localities over the location, size, and design of churches, synagogues, and mosques, as well as schools, day-care centers, homeless shelters, summer camps, and other church-run uses of property. Even prayer meetings held at homes benefit, as using any real property for a religious purpose is a protected religious exercise. This can be considered a First Amendment Right to the United States Constitution.

Counties and municipalities will have to show more flexibility in dealing with religious uses of property, although they have not been rendered powerless every time a church applies for a land-use permit. It can be expected that religious land uses will be allowed in more zoning districts and are not as likely to be subjected to special conditions. Certainly, any zoning ordinance that excludes churches from the entire locality is ripe for a court challenge. The law explicitly prohibits any regulation that "totally excludes religious assemblies from a jurisdiction," or unreasonably limits them.

San Diego has had many cases in which land was taken for a public purpose. Some of the major highways in San Diego are built where houses once stood. When a landowner challenges a restriction on the use of land on the grounds that it is so burdensome as to be a "taking" of the property for which the government must pay compensation, the United States Supreme Court has said in past decisions that a court should consider, among other things, the extent to which the regulation interferes with the landowner's "reasonable investment-backed expectations."

If the restriction was already in place when the owner acquired the property, the question arises as to whether the owner could have reasonable expectations for any use of the property that is in conflict with the restriction. After all, the purchaser "moved to the problem" because he should have knowledge of the restriction that is already in place. There have been many cases regarding these issues in the San Diego Superior Court over the years.

Now the Supreme Court has given landowners new hope with a contrary ruling. Knowing about regulations at the time of sale will still make it harder to win because of the rule about reasonable expectations, but it will not completely preclude such a taking argument. The Court was unwilling to categorically deny relief to someone subjected to the most extreme or unreasonable land-use restriction solely because the restriction was in place when the property was acquired.

The practical effect of the Supreme Court's ruling is to increase the significance for the property owner of creating a record that will demonstrate that the new owner is expecting to acquire all of the same rights as the prior owner, including the right to challenge the legality of the preexisting regulations. The language of the sales contract itself can be drafted to reflect these expectations. The purchaser's actions, such as hiring an architect or a consultant and spending money in the approval process, may speak as loudly about expectations as words in a contract. The Supreme Court left some matters unresolved, but it unquestionably has left open a door to taking arguments that was previously closed by many courts.

Our law office of Pinkerton, Doppelt & Associates, LLP is commited to trying to keep up to date in all aspects of the law. Please feel free to e mail us with your legal question and if we cannot answer it we will refer you to an attorney or a California State Bar Association Referral Service which does.

San Diego, California has seen many types of exterior coating on homes. These range from stucco to wood to stone and many other materials. Given the propensity of San Diego California homes to catch on fire given the fire damage sustained in San Diego in the past, it is important to understand the materials used on the exterior of your home. The City of San Diego Fire Department has important information on its website.

In the early 1990s, home builders began to use synthetic stucco (sometimes referred to as "Exterior Insulation and Finish (EIF) System") as a substitute for conventional masonry such as stone, brick, and stucco. The product has the look of stucco, but underneath are layers of styrofoam, plywood, and fiberglass mesh.

For a price comparable to real stucco, the synthetic version provides better insulation, with less cracking and more flexibility. These advantages may be outweighed, however, by a drawback that has spawned many lawsuits around the country. If water gets through windows, doors, or roof lines and behind the synthetic stucco, it may have nowhere to go, causing rotting and sometimes even toxic mold. The latest EIF systems, if properly installed, allow the water to drain away, but in the meantime some court dockets are becoming crowded with litigation brought by owners of damaged homes.

Many builders are being sued for negligence in not applying synthetic stucco properly, or for breach of contract, breach of warranties, fraud, and violation of state consumer protection laws. In a majority of cases, the property damage can be traced to mistakes in applying the synthetic stucco that allow water to penetrate its surface, or do not allow water to drain, or both. Claiming that the product itself is defective, or that unqualified people are being certified to install it, some builders and homeowners are also taking manufacturers to court.

In one case, a state appellate court allowed a lawsuit to go to trial by jury after a new home was damaged by rotting wood and termite infestation. Although the builder knew of progressive damage to the house caused by synthetic stucco while the house had been rented, there was evidence that he misrepresented to buyers of the house that it was a "quality house" with only minimal past water problems and no structural problems.

In a similar case from another state, an appellate court affirmed a jury verdict of nearly $200,000 against a home builder. Whether or not the builder knew about inherent problems with synthetic stucco, was at fault in using it instead of real stucco, or installed it improperly, the failure to keep out moisture was a major structural defect for which the builder was responsible.

No attorney or law firm, including Pinkerton, Doppelt & Associates, LLP can guarantee any result and these cases are used for illustrative purposes only. Please feel free to e mail us if you have a legal question.