Saturday, December 30, 2006

Many New Laws Affecting Drivers Become Law In 2007

More than 1,400 new state laws will go in effect Jan. 1.

Many of those new laws will target people on the roadways.

People who drive on the wrong side of the road during a police pursuit will now be charged with an additional felony.

If you're driving past an emergency vehicle or police car that's pulled over with its lights flashing, you are now required to move over one lane to the left if it's safe.

"There have been many highway patrol officers hit in the street. Also, the many CalTrans employees and the many firefighters -- this is intended to protect those who protect," said Highway Patrol Officer Joe Zizi.

Tow companies are now required to get permission from property owners before they tow your car.

And a DUI will now show on your permanent record if the driver is under 21.

Wednesday, December 27, 2006

Do I Need An Attorney?

Question: I am a contractor in California. I am going into arbitration before the Contractors State License Board with a former customer. Do I need legal counsel?

Answer: Under certain circumstances, the California Contractors State License Board (“CSLB”) can offer arbitration to settle disputes between a contractor and a customer. If both parties agree to this procedure, then the arbitrator’s decision will be binding just as if the matter had been heard in court by a judge and jury. Therefore, the decision on whether or not to have an attorney is very important.

Whenever a client asks if they need an attorney, I like to use an analogy that we can all relate to: changing your own oil. Acting like your attorney is like trying to change your own oil. I took auto shop in high school and I can change my own oil. However, I can either spend half of my Saturday underneath my car or I can pay $20 to get someone else to do it and get a free car wash. Some people can and do represent themselves appropriately and others should leave the lawyering to the lawyers.

In a CSLB arbitration proceeding, both parties have the right to be represented by legal counsel. However, the customer will have one advantage: an expert witness paid for by the State. While legal representation is not required, I strongly recommend that contractors avoid going it alone in CLSB-sponsored arbitration.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Using a Judgment Lien on Personal Property

Judgment creditors in California often overlook a very simple yet effective lien available to help enforce any judgment: a judgment lien on personal property ("JLPP"). A California judgment creditor can obtain a judgment lien on certain types of personal property (equipment, inventory, farm products, accounts receivable, chattel paper, negotiable documents of title) by filing a Notice of Judgment Lien with the California Secretary of State. The title JLPP is somewhat of a misnomer because the type of lien has more impact on the assets of a business rather and individual judgment debtors.

Like the judgment lien on real property, the judgment lien on personal property is a passive lien in that does not disturb the debtor's possession and use of property. Judgment liens can sometimes better serve the interests of the judgment creditor because they establish priority and are less likely to push the debtor into bankruptcy. A JLPP is particularly effective against business debtors because it can impede a debtor's ability to obtain secured financing under Article 9 of the Uniform Commercial Code.

A JLPP is one of many methods available to California judgment creditors. If you need assistance in collecting an unpaid judgment in California, please contact us for a complimentary consultation.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Enforcing a Restraining Order

Question: I obtained a civil harassment restraining order, but the police won't respond when I call to report violations. What can I do about this?

Answer: I recently covered the topic of making the decision to get a harassment restraining order. Click here to read that article. A restraining order does no good unless you know how to enforce it.

Although law enforcement generally does a good job of enforcing civil harassment restraining orders in California, victims of harassment will sometimes encounter officers that are still reluctant to take a crime report. If the victim cannot convince the police to take a report and enforce the restraining order, the victim can initiate a civil contempt proceeding against the perpetrator.

Under California Code of Civil Procedure §§ 1218 & 1219, you may file for civil contempt for a violation of the harassment restraining order. The abuser is in "civil contempt" if he or she does anything that violates the terms of the harassment restraining order. If the court finds that the defendant violated the restraining order, the judge court sentence the defendant up to 5 days in jail and fine of up to $1000 per violation. The judge can also order the defendant to pay the legal fees incurred by the victim in bringing the contempt charges.

The ability to file contempt can empower the victim to prevent harassment when the police refuse to act. However, it is not without risks. The victim must prove guilty beyond a reasonable doubt just like a prosecutor and the defendant has the same rights as in a criminal case such as the right not to testify and the right to court-appointed counsel if the defendant cannot afford an attorney. Nonetheless, it can be a powerful tool for the victim to fight back and prevent further harassment.

If you need assistance in obtaining a harassment restraining or filing civil contempt charges in Southern California, please contact us for a complimentary consultation.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Thursday, December 21, 2006

Class Action Lawsuit Filed Against Nintendo

This article was reprinted with the permission of the webmaster for Wii Have a Problem.

A law firm known as Green Welling LLP has petitioned for a class action lawsuit against Nintendo for what they are calling "the defective nature of the Nintendo Wii." It will be up to a judge to decide whether or not this lawsuit will move forward.

"Green Welling LLP filed a nationwide class action lawsuit on behalf of the owners of the Nintendo Wii against Nintendo of America, Inc., in the U.S. District Court for the Western District of Washington. The class action lawsuit arose as result of the defective nature of the Nintendo Wii. In particular, the Nintendo Wii game console includes a remote and a wrist strap for the remote. Owners of the Nintendo Wii reported that when they used the Nintendo remote and wrist strap, as instructed by the material that accompanied the Wii console, the wrist strap broke and caused the remote to leave the user's hand. Nintendo's failure to include a remote that is free from defects is in breach of Nintendo's own product warranty.

The class action lawsuit seeks to enjoin Nintendo from continuing its unfair or deceptive business practices as it relates to the Nintendo Wii. The lawsuit also seeks an injunction that requires Nintendo to correct the defect in the Wii remote and to provide a refund to the purchaser or to replace the defective Wii remote with a Wii remote that functions as it is warranted and intended."

Those of you familiar with class action lawsuits will remember that the plaintiffs in these cases usually receives approximately ten cents per person while the lawyers will receive a healthy percentage of the total settlement. Personally this seems like an attack on Santa's Elves, and it's fairly distressing. Why a band of lawyers have decided to take up arms against the beloved toymaker from the Land of the Rising Sun is beyond me. There are a lot hurdles this lawsuit would need to clear before it became a clear threat, but it's something to keep an eye on nonetheless.

Attorney Carl Starrett Obtains $39,000 Judgment

The Law Offices of Carl H. Starrett II has successfully obtained a default judgment against Joseph M. Encarnacion ("Encarnacion") in the amount of $39,617.62. The Court entered the judgment on December 15, 2006.

The lawsuit was filed on July 12, 2006 on behalf of Dominador C. Mauricio ("Mauricio"). The lawsuit alleged that Encarnacion failed to repay a large sum of money borrowed from Mauricio. Encarnacion failed to respond to the lawsuit and the Court entered a judgment for the loan balance of $34,000 plus interest, legal fees and court costs.

Civil judgments in California collect interest at the rate rate of 10% per year. In this case, interest will accrue at the rate of $3961.76 per year or $10.85 per day until paid. Efforts to collect the judgment will begin immediately.

About the Author:
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Monday, December 18, 2006

When to Open a Line of Credit

By Chad Preston

The first hurdle faced by most small business owners is scraping up enough money to launch and maintain their new ventures. Although some newly established business owners have enough cash on-hand to jumpstart their enterprises and keep them humming along, many rely on credit, whether through the owners’ personal lines or through separate business lines—sometimes both. But how does one decide when it’s the right time to open a line of business credit, and then make the most of a credit line that has been opened?

Use an Umbrella in the Sun
When asked, “When should a small business open a line of credit?” Barbara Weltman, a small business and tax expert, quotes Mark Twain: “A banker is a fellow who lends you his umbrella when the sun is shining, but wants it back the minute it begins to rain.

“A business should try to get a line of credit in place when they don’t really need it, so that it will be there for them when they do,” she says.

Weltman says that because a business owner never really knows what the future holds, getting credit early is a must. “As soon as the business is going, you should try for credit. It might be a modest amount at first, but having credit is a way to build up credit, in a sense. Having credit, creating a track record will help the business to qualify for [more] credit.”

Don’t Jump in Too Soon
Before opening a line of credit, newly established companies may want to wait until they’ve been in business a few months and have established themselves, says Michelle Dunn, founder and president of Never Dunn Publishing, LLC, Plymouth, N.H. You want to have some credit history before jumping right in, says Dunn, who has more than 18 years of experience in credit and debt collection. If you don’t have any business credit cards or vendors who have let you charge anything, use a tax ID number and a bank account that can be checked as a reference.

“The right time for any business to apply for credit or open a credit account would be … [when] they are able to pay their bills in-full every month and they’re not struggling. Because if they’re struggling already and then they apply for credit they’ll probably be denied credit,” Dunn says.

“I think that a lot of [small businesses] try to open credit right away when they first open their business, so they’re not established, they don’t have any credit history and then if [they] go and apply for credit again it will show on [their] credit report that [they] just applied and if it’s not that long—that’s always a negative thing,” Dunn says. “You don’t want to apply over and over for credit.”

There are times when a loan may be a better choice for funding purchases, such as equipment or property acquisitions, Weltman says. But when you’re looking for money to help you with working capital, a line of credit would fit the bill. A small business owner may qualify for a line of credit more easily than he or she could for traditional commercial loans, she notes.

“I think businesses need credit. That’s really how things work,” she says. “The good thing about a line of credit as opposed to another kind of borrowing is you have that money at your disposal but you’re actually only paying for the amount that you use. If you obtain a $50,000 line of credit, but only use $10,000, you’re only going to be paying interest on the $10,000 and then as you pay it back you have a greater pool to borrow from again. Having a line of credit gives you more control over your money.”

Don’t Make It Personal
Many small business owners use their personal credit, either because it’s easy and available or they have not yet established business credit. Both Weltman and Dunn agree that your personal credit should be separate from your business line.

“[Using personal credit] doesn’t help the business build up separate credit and it also may be more costly in terms of interest than what the business rate could be,” Weltman says.

“You will want them to be separate, but in the beginning, it won’t be, because you don’t have any other credit,” Dunn says. “Especially if you’re a sole proprietor, when someone checks your business credit, you’re personal credit will come up.

“[Small business owners] don’t realize that when you first open a business, your personal credit is your business credit, so if you have bad credit personally, you’ll want to clean that up before you start your business,” she says.

Weltman agrees. “The most important thing for a small business owner when it comes to obtaining business credit is to first take care of your personal credit rating and make sure that you clean that up and make sure you have a good personal FICO score,” she says.

Small business owners will almost always be required to guarantee the line for their businesses, Weltman says, a fact that many owners are unaware of. Another misconception, she says, is that the owner will not be on the hook for the money. When it comes to small business lines of credit, the owner usually has to guarantee payment. So, many owners are told if they form a corporation or a Limited Liability Company (LLC), they don’t have personal liability, but that doesn’t apply in this situation, she says.

In some cases, businesses don’t need credit to sustain operations, but that doesn’t mean that they should disregard the importance of establishing good credit. For these companies, it is still a good idea to create solid credit histories because it gives them additional financial options for the future. “If you have a business for 10 years and you never paid on credit or opened a credit account and then you suddenly need to, that could hurt you,” Dunn says.

Wednesday, December 13, 2006

Office Holiday Parties - How to Avoid More Than a Headache the Day After

Although the company holiday party is an opportunity to relax a bit and enjoy a fun evening with the people you see Monday through Friday, it's important to remember that this is a work function. Your boss is there. Your boss' spouse is there. This means that it is not a good time to introduce your rendition of Dancing With The Stars or that joke that seemed just a little too edgy for the office. With the popularity of camera and video phones, you can bet that what happens at the company party won't stay at the company party. So, whether you're the boss or enjoying a night out on the boss, here are some tips for your next company party:
  • Talk to your HR Department in advance. Set a strategy to address anyone who's party going gets out of hand.
  • Set a "7th inning stretch". If alchohol will be available, consider closing the bar an hour before the festivities finish to allow people to clear their heads before driving.
  • and finally...if you're having any doubts about taking your partygoing to the next level, ask yourself if you would do the same action at tomorrow's staff meeting. Chances are, you'll opt to save that fun for another time and thank yourself in the morning!

About the Author: Lisa F. Starrett has been a certified paralegal since 1993 and has more than 12 years of experience in human resources and recruiting. As a paralegal with the Law Offices of Carl H. Starrett II, she works in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Tuesday, December 12, 2006

Gift Certificate Expiration Dates

Question: Do gift certificates expire? I am in California and I just found some gift certificates that I received for Christmas in 2000. Are they still any good?

Answer: With Christmas coming up, I've been getting a lot of questions about gift certificates. Under California law, most gift certificates cannot contain an expiration date, and are valid until redeemed or replaced.

There are exceptions to this rule: (1) certificates issued prior to January 1, 1997; (2) certificates that are distributed under various awards programs; (2) certificates that are sold to employers or to nonprofit and charitable organization for fundraising purposes; (4) and certificates for food products.

California law also bans nearly all service fees on retailer gift cards and gift certificates with one limited exception. On a rechargeable card with a balance of $5 or less, the issuer may charge a dormancy fee of $1 per month after 24 months of inactivity. Even a balance inquiry counts as activity that prevents this fee. All other service fees are prohibited.

California law even allows for the cash redemption of gift certificates. Click here to read the full text of the law regarding gift certificates in California.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Wednesday, December 06, 2006

Ten Tips For Saving Taxes in 2006

With the end of 2006 approaching, there is still time to save money on your tax bill. Here are 10 useful tips that you can use:

  • Business owners can purchase an SUV on credit and get up to a $25,000 instant deduction as well as the benefit of an additional depreciation amount to the extent that the SUV costs more than $25,000.
  • Business owners can purchase a 3/4 ton truck (or larger) and write the whole amount off up to $108,000.
  • Setup a SEP retirement account in 2006 and you will not have to fund the retirement account until October 15, 2007 if you file extensions.
  • Owners of businesses who use the Cash Accounting Method can ask their clients or customers to refrain from paying invoices until 2007. This will defer the taxes into the next year.
  • Business owners can pay bills in December 2006 that are due in January 2007 in order to obtain an early write off.
  • Property owners can rent a space in your home to their business as an office and write off part of the utilities, insurance, taxes, interest, repairs and depreciate part of the home. The business should be a corporation or an LLC. Otherwise you may take the office in the home deduction for your schedule “C”.
  • Incorporate if your own a small business that is netting more than $35,000 annually. Business owners can realize tax savings as well as protect personal assets. The rush is on to incorporate on Jan 02, of 2007.
  • Teachers can still write off up to $250. However, there is no line on the 1040 to list it anymore as the write off was approved after the forms were printed.
  • Purchase a new car and write off the sales tax in 2006.
  • The biggest tax tip is to avoid preparing your own taxes. Software cannot replace a professional in using every benefit available to you. You will save time, taxes and reduce your chances of being audited.

And remember, there are limits and special conditions to the above, so consult your tax expert to make sure you can qualify for any of the above benefits.

About the Author: John Leslie, a certified QuickBooks Pro Advisor, has 20 years of experience in the tax field. Mr. Leslie is a member of the Lakeside Chamber of Commerce has been involved in the San Diego business community since 1986 and has lived in the area for over 40 years. His strong ties to the community have shaped the client-business philosophy for which IRSTAXHELP.COM is known.

California DMV to Start Suspending Vehicle Registrations of Uninsured Drivers

The California Department of Motor Vehicles ("DMV") has announced plans to step up efforts to crack down on uninsured drivers. The process began in January 1, 2006 when all insurance companies were required to begin provide information to the DMV on automobile policies to California drivers. Beginning in July 2006, law enforcement court personnel were given access to DMV files to check the insurance status of any registered vehicle.

The final step began in October 2006. The DMV can now suspend the registration of any vehicle if the liability insurance has expired, been cancelled or if the insurance company has not provided electronic proof of insurance for a driver's vehicle.

The DMV has already mailed thousands of letters to car owners warning them that their registrations may be suspended if they can't prove they have auto insurance. The DMV will also review information on the 22.4 million private vehicles registered in the state. The DMV will cross-check records of registered car owners in a database of insured vehicles that's updated by insurance companies. If the program works as planned, California drivers should have greater assurance that the car next to them is properly insured.

About the Author:
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Saturday, December 02, 2006

Update on Star Ambulance Investigation

After announcing an investigation of Star Ambulance in conjunction with Special Investigations Agency, NBC 7/39 in San Diego began to cover the story. Star Ambulance went out of business without notice to its employees, leaving behind thousands of dollars in bounced paycheck. Click below to see the entire story:

Please contact us if you have any information about the Star Ambulance and the wherabouts of founders Larry McEwen and Frank Westbrook.

Friday, December 01, 2006

California Court Grants Partial Victory to Supporters of Mount Soledad Cross

In the recent case of Paulson v. Abdelnour, the Court of Appeal for the Fourth Appellate District of California (Division One) granted an important victory in the battle to save the Mount Soledad War Memorial in San Diego. The Court of Appeal reversed a trial court decision that invalidated the passage of Proposition A. Proposition A mandated that the City of San Diego Donate the Mount Soledad Memoral, including the cross and surrounding to land, to the federal government to be maintained as a war memorial.

Although a cross has existed on Mount Soledad in some form since 1913, the Mount Soledad War Memorial Association received permission from the City of San Diego ("City)" to erect the present cross as a memorial to fallen Korean War veterans. Mount Soledad is an 822-foot-tall hill that lies between Interstate 5 to the east and the Pacific Ocean to the west.

In 1989, Phillip Paulson ("Paulson") filed a lawsuit against the City seeking removal of the Mount Soledad Cross. Paulson claimed that allowing a cross to remain on public land violated both the California and United States Constitutions. Since 1989, numerous courts have made rulings in one form or another regarding the constitutionality of the Mount Soledad Cross.

In 2005, Congress passed a law that designated the Mount Soledad site as a national veteran’s memorial. The act providing for the designation recites: "Not later than 90 days after the date on which the City of San Diego, California, offers to donate the Mt. Soledad Veterans Memorial to the United States, the Secretary of the Interior shall accept, on behalf of the United States, all right, title and interest of the City in and to the Mt. Soledad Veterans Memorial."

The act further states that upon acquisition of the memorial by the United States, the Secretary of the Interior "shall administer the Mt. Soledad Veterans Memorial as a unit of the National Park System, except that the Secretary shall enter into a memorandum of understanding with the Mt. Soledad Memorial Association for the continued maintenance by the Association of the cross and surrounding granite memorial walls and plaques of the Memorial."

In response, the San Diego city council placed Proposition A on a special July 26, 2005, election ballot allowing the citizens of San Diego to directly decide whether the invitation offered by the federal government should be accepted. Proposition A passed on July 26, 2005, by 76 percent of the vote. Paulson challenged Proposition A in court and the trial ruled that the land proposed land transfer was unconstitutional.

The Court of Appeal reversed. In a 33 page ruling, the Court noted that nothing in Proposition A or the federal legislation mandated keeping the cross as part of the memorial. The Court also noted that the matter was decider by the voted and the Court refused speculate whether San Diego voters were motivated by secular or religious reasons.

Although Paulson recently passed away, the remaining plaintiffs could still appeal to the California Supreme Court and this decision does not terminate the federal court proceedings. However, it does bring Mount Soledad supporters one step closer to preserving a cross and war memorial that have existed for more than 50 years.