Articles Posted in NEWS AND COMMENTARY

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 Law Office of Scott C. Soady, A Professional Corporation, 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.

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.

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.

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.

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.

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 Law Office of Scott C. Soady, A Professional Corporation, 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.

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 Law Office of Scott C. Soady, A Professional Corporation, 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.

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 Law Office of Scott C. Soady, A Professional Corporation, 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.

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.

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 Law Office of Scott C. Soady, A Professional Corporation, 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.