Articles Posted in NEWS AND COMMENTARY

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.

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.

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).

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

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

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.

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.