California Business Litigation Blog

How to successfully negotiate a commercial lease

As a business owner, a commercial lease is one of the most important aspects of your company. With the right terms and conditions in place, you'll feel good about your place of business as well as how much money it costs you each month.

During your search for the perfect property, it's critical to remember that you have the right to negotiate a commercial lease. The landlord doesn't have to negotiate off of their originally proposed terms and conditions, but it never hurts to ask.

Planning a new business location in the greater Oakland area

Running your own business requires a lot of knowledge and personal investment. Whether you have already operated a successful business in another location, developed a business out of your home and now need to expand to a different facility, or have a business plan that you want to put into action, you will need to make sure that you comply with state and local laws.

In addition to developing your business plan, you will need to get permits and licenses for your business depending on the services or products you intend to offer. You will need to ensure that the location where you intend to operate your business has the right zoning for the operations you intend to perform there.

7 cybersecurity tips for your small business

It seems as though the internet becomes more useful each day. Businesses use computer systems to purchase products online, collect data for marketing purposes, send email updates to clients regarding their order and much more.

Although the internet and computer systems are helpful tools for businesses, they can be dangerous too. A cybersecurity attack can happen to anyone.

What this Supreme Court case could mean for discrimination

On Monday, CNN announced that the Supreme Court would hear a racial discrimination case. The case involves Comcast and Charter Communications and Entertainment Studios, an African-American owned entertainment company.

Comcast is challenging a lower court’s decision in favor of Entertainment Studios. The case may set a precedent that will make it harder to determine employer racial discrimination.

Did Netflix engage in unfair competition with Viacom?

Viacom has filed a lawsuit against Netflix alleging it breached an employment contract with a former employee. According to Deadline, the cable company claims that Netflix violated terms of a contract when they hired Momita Sengupta as VP for physical production for original series.

Instead of selling your property, what if you exchange it?

If your home in the bay area has significantly appreciated in value, selling your property will mean taking on a sharp capital gains tax. Instead of selling, consider exchanging your property.

A real estate professional, tax advisor, and other exchange specialists can guide you through exchanging your business or investment property for a similar property using section 1031 to avoid the gains tax or receive what is known as “deferred gain treatment.” This allows you to reinvest profits from your exchange of property into more productive areas, allowing you to grow your business.

Disregarding Company Separateness Cancels Loan

In Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, decided on July 31, 2017, the California Supreme Court upheld a Marin County trial court decision, that the integration clause in an agreement between the plaintiff and the owners of a company, cancelled a completely separate loan agreement between the plaintiff and the company, when the company was determined to be the alter ego of those owners.

The integration clause is one of those boilerplate sections at the end of most written contracts, that the written contract supersedes and replaces all previous contracts, proposals, negotiations and communications. If the parties have other relationships and contracts, such a clause in a new agreement, will reach out and cancel or at least alter all of the parties' prior agreements, even if either of them might not have meant to. For example, when a commercial dispute between a landlord and a tenant or a lender and a borrower, is resolved by negotiations and the compromise is recorded in a settlement agreement, if an integration clause is included in the settlement agreement and the lease agreement or promissory note is not excluded from the integration clause, then it will cancel the lease or promissory note, destroying the landlord's right to the rent, the tenant's right to occupy the premises, or even the lender's right to collect the remainder of the amount owed.

Breaking Anonymity on the Internet

In ZL Technologies, Inc v. Does, issued July 19, 2017, the California Court of Appeal in San Francisco explained the test for deciding when a plaintiff's need to identify the human beings behind internet usernames outweighs those users' First Amendment right to remain anonymous. The U.S. and California Supreme Courts have not addressed this issue, yet.

The First Amendment protects anonymity, because it encourages free and frank expression and debate, without fear of reprisals. However, the First Amendment does not protect false defamatory statements. Society receives no benefit from lies. Therefore, the threshold issue was whether or not ZL had made a sufficient showing that the statements were false, and not just opinions, and caused harm to ZL, to justify forcing Glassdoor to break its promise to its users, of anonymity. Every false statement is not subject to court intervention. In order to be defamatory, the statements must not only be false, but also must cause real harm.

Employee versus Independent Contractor

Businesses are examining the option of treating the people who do the work for them as independent contractors and not employees. Independent contractors can be denied most of the protections the law provides to employees. These include, but are not limited to, withholding taxes, employer's share of Social Security contributions and State Disability Insurance premiums, overtime compensation, overtime premiums, breaks, reimbursement of expenses for business use of employees' vehicles or other tools and equipment, vacation pay, sick pay, and health benefits. Some businesses also feel less inhibited about terminating, reducing compensation and reducing hours of independent contractors than of employees, even with respect to at-will employees.

There are at least 14 factors a court, tax authority or employment-related government agency will look at to determine whether or not your workers are really independent contractors or are employees. Only one of those factors is the language in the contract which says that the worker is an independent contractor and not an employee. In the July 2017 case of Espejo v. The Copley Press, Inc., a class action by the men and women who deliver the San Diego Union, the Court of Appeal held that, "The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced."

The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. 

Call Your Lawyer Fast

If you are injured by someone, your property is damaged, or someone breaches a contract with you, call a lawyer immediately. Even though the statute of limitation for personal injury and property damage is 3 years, and for breach of contract is 4 years, if one of the bad guys is a governmental agency, then you must file a claim with the government within 6 months for personal injury and property damage and within 1 year for breach of contract and other claims. If the claim is rejected in writing, then you have to file the lawsuit within only 6 months.