Wednesday, December 27, 2006

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.