Contact Us

What is Business Law?

What is Business Law?

shutterstock_77709151-300x175 What is Business Law? Lawyer Palm Springs | Orange CountyBusiness law, also known as commercial law or mercantile law, is the law that governs business practices between individuals and commercial matters.

The team of knowledgeable and skilled attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding locations.

 

Business Formation

Business law initiates as soon as a business is set-up. Business attorneys assist decision makers in understanding the benefits and limitations of each entity when they are setting up a business.

They provide the founders of the business with insights on the law to help them select the entity that best serves their interests. Subsequently, they help the founders file the documents to begin the business formally.

 

Employment Concerns

A business may need employees after it hits the ground. Businesses require legal guidance to help them understand the right way to appoint and fire employees as well as ways to handle employee discord and discipline.

They also need to understand what to offer as pay and benefits to employees. Furthermore, there are obligatory payroll taxes and deductions as well. Business attorneys provide their clients with details on the regulations and best practices for employee management.

 

Sales of Consumer Products

Buying and selling are not as straightforward as it appears on the surface and there are various laws governing how companies manufacture and sell products. Business attorneys assist their clients in understanding the regulations that a business must follow and helps ensure that the company complies with the law.

 

Contract Drafting and Negotiations

Business law attorneys have to comprehend facets of contract law from statutes as well as common law. Furthermore, they must have a thorough understanding of the intricacies that may affect the enforcement of a contract. These lawyers must work with their clients to negotiate and draft contracts in a manner that is most suitable to the client’s interest.

 

Anti-Trust

Businesses that use unfair or dishonest practices to stay ahead of the competition may face allegations of anti-trust violations. Business lawyers can assist their clients in identifying any offending activities that can comprise anti-trust before such activities can cause issues for the company.  

 

Intellectual Property

Upon creating a new product, a business must ensure that they protect their ability to profit from their innovation. Intellectual Property and Copyright law protect a business’s right to keep and use their products fully.  

 

Taxes

Operating a business involves awareness of various taxes involved such as employee taxes, estimated taxes, and deductions. A business attorney can help companies fulfill their tax obligations as well as take steps to reduce their tax burden.

They may assist the business in applying for special tax waivers or forgiveness which the company may be eligible for at specific locations or for particular industries.

 

Bankruptcy

If a business faces financial hardships, they will require attorneys to help them understand their options. The only or ideal option for a struggling company is not always filing bankruptcy.

Business attorneys can offer their clients advice on the benefits and limitations of various actions. After the company strategizes a plan, attorneys can help the business complete the filing properly and remain in compliance with the legal requirements.

 

The attorneys at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

What is Bankruptcy Law?

shutterstock_70656412-1-1-200x300 What is Bankruptcy Law? Lawyer Palm Springs | Orange CountyThe focus of bankruptcy laws is to help people solve and repay their debts after incurring substantial losses. There were bankruptcy laws in the US as early as 1800. But the first voluntary bankruptcy regulations were allowed through the Acts of 1841 and 1867.

These acts, in addition to the Bankruptcy Act in 1898, also known as the Nelson Act, form the foundation of our present debtor/creditor relation system.

A common phrase heard in the context of a person facing adverse financial circumstances is that they may “declare bankruptcy.” But what do bankruptcy proceedings comprise in the US and how are lawyers involved in the process? It is useful for a business owner to know the basics.

Committed attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding locations.

 

Where do bankruptcy laws originate from?

Title 11 of the United States Code outlines the federal bankruptcy laws. This law governs almost all bankruptcy proceedings. More specifically, there are three common types of bankruptcy proceedings. While Chapter 7 of the Code is applicable to individual procedures, Chapter 11 proceedings are meant for enterprises.

Lastly, Chapter 13 proceedings govern people who earn wages. Under this Chapter, petitions request the court for more time to enable a debtor to pay off their liabilities while earning a stable income.

 

What do bankruptcy attorneys do?

Bankruptcy attorneys may operate on behalf of the debtors (the person or enterprise who is liable for the debt) or creditors (the people or business entities to whom a debt is owed).

The goal of a bankruptcy proceeding is to be beneficial to the debtor as well as the creditor, by allowing debtors to start afresh financially and enabling creditors to feel satisfied. Bankruptcy attorneys for both parties work towards achieving this objective.

A routine day for a bankruptcy lawyer may include drafting motions and proceedings to be filed in court and developing responses to motions and other filings. Bankruptcy attorneys review and engage in discovery documents as well as attend meetings with clients and opposing parties to discuss the ideal path to move forward.

The court will hear motions in bankruptcy cases, and the attorneys will have to be adequately prepared to argue them. But junior lawyers in bankruptcy law practices may not always be able to argue these motions in court. This is typically undertaken by more experienced lawyers.

Bankruptcy lawyers perform various tasks, and this requires a wide range of skills. These attorneys have in-depth knowledge of the Bankruptcy Code along with strong legal research and writing skills.

Bankruptcy lawyers also need to have strong interpersonal skills since they will be communicating with clients and negotiating with the opposing parties as well. Their judgement pertaining to these matters needs to be acute and based on sound information and precedent.

These lawyers must be prepared to argue motions filed in court at any time and should have a detailed understanding of the filings involved along with excellent oratory skills.  

Committed lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.


SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

What is Appellate Law Practice?

shutterstock_45287167-1-300x200 What is Appellate Law Practice? Lawyer Palm Springs | Orange CountyA trial may not be the end of a case, and one or both parties may want to appeal a part or the full trial decision. In addition, they may want to appeal specific parts of the proceedings of the lower court that may have prompted the jury or the court to arrive at a wrong verdict.

An appeal is the process of asking a higher court to reassess a judgment made by a lower court or an administrative agency, and appellate lawyers are the attorneys who assist clients in pursuing or defending an appeal.

Accomplished lawyers at SBEMP (Slovak, Baron, Empey, Murphy, & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding locations.

 

The Review Process

The appeals court reviews the decision by the lower court to understand if they made an error. The appeals court does not start a new trial or accept new evidence. Rather, they evaluate the record from the lower court.

A review of the record may involve viewing pieces of evidence, reading a transcript, and understanding the arguments of both parties. In addition, a higher court may listen to verbal arguments where they can question the lawyers representing the parties.

At times, the reasons for an appeal are apparent. However, in some cases, a lawyer must identify the issues and assess their worth. A sagacious appellate lawyer must be aware of how to identify the specific aspects that may form grounds for an appeal.

An appellate law attorney will need to prepare the appeal and compile the required supporting documents when they advocate for the client bringing the appeal. If the lawyer is working for the responding party, they will need to compile and file an appropriate response.

 

Administrative Reviews

All appellate work does not initiate in a lower court. A large number of hearings and decisions from the state as well as federal agencies occur at administrative hearings.

For instance, if a person is contesting an unemployment benefits denial, the proceedings will likely begin in front of an administrative hearing officer. This also holds true for a hearing on food stamps benefits eligibility or challenging a license suspension from the state department of motor vehicles.

In a majority of cases, you can bring an action in court to review the verdict if you do not agree with the hearing officer’s decision. On occasion, the judicial branch will start an entirely new trial with evidence. At other times, the appellate court may review the administrative record.

 

The Purpose of Higher Courts

Appellate courts serve many purposes. Firstly, lawmakers want to offer citizens a consistent justice system throughout a state and country. They do not want to give complete power to an individual judge.

An appeals process offers the litigant a possible course of action in case the lower court does not provide the correct verdict. The appeals process is a measure of accountability for the trial judges.

Sometimes there can be an honest oversight by the judge. In such cases, higher courts help rectify these mistakes. Litigants have access to justice as well as a fair and consistent rule of law with the possibility of error correction.

Finally, higher courts offer legal interpretations in ways that have an effect on society as a whole.

Dedicated lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.


SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

Recent Trust Litigation Victory For SBEMP: Co-Trustee Removed For Violations of Fiduciary Duties

Trust Case Summary:

Law-Crime-Judge-Legal-Court-Justice-Lawyer-Trust-Case-300x225 Recent Trust Litigation Victory For SBEMP: Co-Trustee Removed For Violations of Fiduciary Duties Lawyer Palm Springs | Orange County

As a result of the intervention of SBEMP, a recent court decision ordered a co-trustee in violation of fiduciary duties be removed from his position as Co-Trustee of the Trust.

Case Background:

BN’s brother died, leaving a trust naming her and his roommate (with whom he did not have a legal relationship) as Co-Trustees; and granting the roommate, WM, a life estate to remain in the house.

After several violations of fiduciary duties, BN petitioned to remove WM as a co-trustee.

The fiduciary violations included; but were not limited to:  falsifying the decedent’s death certificate, with the intention of divesting the Trust beneficiaries from their inheritances; preventing BN from administering the Trust and performing her trustee duties (e.g., accessing the Trust-owned real property and documentation relating to the other trust assets and its obligations); and engaging in a campaign of hostility toward BN and the other Trust beneficiaries.

WM admitted he falsified his relationship on the death certificate and interfered with administration by not giving BN access to the information.

Decision:

The court ordered that WM provide BM with all information in his control necessary to determine the assets of the Trust, income of the Trust, expenditures of the Trust, and expenses of the Trust for proper accounting.

The court ordered WM to allow access to the property sufficient to allow BN, or her designated agent, to photograph or video record the property and all of its contents for the purpose of identifying and marshaling the assets of the Trust and to allow for a proper appraisal and accounting.

The court also removed WM as Co-Trustee of the Trust and BN is appointed sole Trustee.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this article, seek the advice of an attorney.

The Use of Special Needs Trusts in Estate Planning

Special Needs Trusts

special-needs-trusts-for-children-lawyer-300x200 The Use of Special Needs Trusts in Estate Planning Lawyer Palm Springs | Orange CountyMost parents want to leave assets to their children when they die. If an individual with a significant cognitive disability receives assets, they may not have the capacity to make good decisions about how those assets are used and they may become ineligible for important federal and state resources and services. The individual can lose Social Security Income (SSI) and Medicaid and the assets may also be subject to recoupment by Medicaid (a.k.a., Medi-Cal) or by the State if the individual is receiving residential services.

Upon realizing this, parents decide to disinherit the child with disabilities, leaving everything to the non-disabled children with verbal instructions to use part of the inheritance for the benefit of the sibling with disabilities. While this may appear to be a good idea, it can have equally negative results.

For example, the non-disabled child may not use the inheritance on their sibling’s behalf, and is under no legal obligation to do so. Even if the non-disabled sibling uses the assets exactly as the parents intended, they can be claimed by creditors, can have negative tax consequences on the non-disabled sibling, and can be subject to equitable distribution in the event of divorce.

Avoid Negative Consequences

To avoid these negative consequences, it is recommended that parents establish a special needs trust. A special needs trust can protect the assets while; at the same time, making the assets available to protect and enrich the life of the person with a disability without jeopardizing benefits available from the government. A special needs trust is a unique legal document that contains a set of instructions describing how assets placed into trust will be administered on behalf of a person with a disability. It must be carefully worded and is best written by professionals familiar with disability services and programs.

Parents and other family members can use a special needs trust to hold assets for a disabled person. Even families with modest assets should establish a trust; typically, such trusts are not funded until one or both parents die. A special needs trust can be funded through life insurance or estate assets distributed through one’s Will. So long as the assets have never vested in the person with a disability, the special needs trust need not contain a provision reimbursing Medicaid and other providers.

Trust Funds Law

Trust funds can be used to purchase independent professional opinions as necessary, fill in gaps in services, provide additional recreation and other amenities, pay for a private residential placement or buy a vehicle used to transport the beneficiary of the trust.

At the death of the beneficiary, any remaining trust property is disposed according to the instructions written in the trust document by the donor. For example, property might go to other family members or to a charity. SBEMP, LLP frequently works with families to establish special needs trusts as part of their estate plan.

The governing regulations for special needs trusts can be found at 42 U.S.C. § 1396p.


For more information or to request a consultation please contact the law offices of 
SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this article, seek the advice of an attorney.

What is Anti-Trust Law?

office-22-300x237 What is Anti-Trust Law? Lawyer Palm Springs | Orange CountyAntitrust law refers to the extensive category of federal and state laws that aim to ensure that enterprises operate honestly and fairly. The objective of these laws is to create a level playing field in the free market and disallow organizations from wielding excessive power.

Antitrust law perceives a trust as a large group of companies that work with each other or in combination to create a monopoly or control the market. The Interstate Commerce Act of 1887, the Sherman Act of 1890, the Federal Trade Commission Act of 1914 and the Clayton Act of 1914 are the most significant antitrust laws in the US.

The prudent lawyers at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding locations.

 

Need for Antitrust Laws

Antitrust laws disallow companies from indulging in specific activities aimed at developing monopolies. These regulations prohibit what some people perceive as deceptive trade practices that companies may want to employ to stay ahead of the competition. In other words, antitrust regulations forbid companies from using dirty poker to beat the competition.

 

What do antitrust laws disallow?

Antitrust regulations do not ban a company from holding a large market share if they achieve this by legitimate means. These laws ban any acts that are aimed at developing a monopoly using unfair strategies. The courts use the “rule of reason” test to establish whether an activity is illegal. They consider the business decision’s impact on the market.  

 

Laws and court cases offer more direction

Courts offer more direction on the types of behaviors that constitute antitrust contraventions as government bodies, and private entities bring lawsuits against alleged violators.

The courts state that specific acts such as group boycotts, group agreements, or price fixing to control business activities in particular markets amount to antitrust activity by default. But no two cases are identical. In every case, the court has to understand exactly what transpired and arrive at a decision.

The Sherman Act is the fundamental law that disallows antitrust behavior. Courts can hand out civil and criminal penalties including up to ten years imprisonment and a fine of $1 million for each offense. Companies can also be levied with a fine that amounts to twice the amount of profits that they garnered from the illegal activity.

The Clayton Act, which is an antitrust Act that emerged soon after the Sherman Act, specifically identified unlawful behaviors. For instance, the Clayton Act disallows an intermingled directorship where one individual is in charge of making business decisions for two or more rival entities.

 

How does an organization know if they are contravening an antitrust law?

It is not always apparent on the surface whether a company is in violation of antitrust law. This aspect involves the specificities of each case. The courts and regulating bodies have to understand the facts of the case to arrive at a decision.

It is a wise move for companies to seek reliable legal counsel as they strategize significant changes such as mergers and acquisitions to ensure that they remain on the right side of antitrust laws.

Knowledgeable lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

What is Advertising Law?

court_house What is Advertising Law? Lawyer Palm Springs | Orange CountyWhile advertisement is universal, many people are unaware that there are laws and stipulations that govern the manner in which corporates may or may not legally advertise.

Advertising law attorneys operate behind the scenes and assist companies through law firms or in-house counsel to ensure that they follow the rules of legal and ethical advertising.

The team of attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding communities.

 

Advertising laws origins

The Federal Trade Commission (FTC) sets forth the rules and regulations that govern a majority of marketing and advertising law in the US. These stipulations seek to ensure that advertising is honest and fair, and can impact the functioning of companies in various ways.

The FTC requires advertising claims to be “evidence-based.” This means that advertising cannot be misleading or false.

These rules are applicable to marketing and advertising strategies across all mediums, such as digital and telemarketing campaigns. They apply to general product claims and health-specific claims regarding the effectiveness of a product.

 

Functions of advertisement lawyers

Most lawyers pursuing a career in advertising law will work alongside corporate entities offering them guidance and advice to make sure that they are always within the purview of advertising rules and regulations.

These profound attorneys must possess in-depth knowledge and comprehension of advertising rules and regulations and sound legal research skills to understand new issues as they surface.

Advertising law attorneys go over product labels, ads, and claims make by the firm and recommend changes if required. In this regard, it is vital to have a detailed understanding of the kind of claims that contravene the “truthfulness” specifications set forth by the FTC and other advertisement laws.

But not all attorneys working with advertising law operate on behalf of the company. Enforcement is the other side of the equation, and this comprises lawyers who work to bring either criminal or civil penalties against corporates that contravene advertisement law.

It may be challenging to build a career in advertising law enforcement. However, many careers with the criminal justice system or regulatory boards involve cases centered on advertising law.

 

Where do advertising lawyers work?

There are many options for lawyers seeking to pursue a career in advertising law in terms of job placement. Some private law practices have advertising law departments where they employ attorneys with expertise in advertising and marketing law. These proven attorneys will work with various clients, typically companies, to monitor their advertising processes and offer advice.

However, these positions are still a rarity, and a majority of smaller law practices do not have a separate advertising law department. It is best to search for opportunities in advertising law at a few major cities, such as New York or Washington DC, where such positions may be available.

Advertising law is an expanding field which involves the omission and enforcement of advertising laws in the US. In general, advertising attorneys will be in high demand as long as advertisements continue to be prevalent in the world of business.

Judicious lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

November Litigation Updates

SBEMP Wins in Court of Appeals For Morningside Community:
Court Denies Anti-SLAPP Motions

Plaintiffs and Respondents, homeowners in the Morningside community in Rancho Mirage, challenged an amendment to their homeowners association covenants, conditions and restrictions (CC&Rs) that imposed a $250 monthly assessment against non-members to subsidize the costs of maintaining The Club at Morningside members-only golf and tennis club in the residential desert community. The Club’s members were not required to pay the new assessment.Plaintiffs sued several defendants, including appellants The Morningside Community Association and its directors, the Club at Morningside and its directors, and Peters & Freedman LLP, and David M. Peters, lawyers for the Association.

Defendants responded by filing Anti-SLAPP motions.

Slovak Baron Empey Murphy & Pinkney LLP represented the Plaintiffs and Respondents. The trial court denied Defendants’ anti-SLAPP motions, and the Court of Appeals recently affirmed. Shaun Murphy opposed the anti-SLAPP motions in the trial court and Wendy Dowse handled the appeal.

Click here to read the whole story.


Lis Pendens; What happens after trial?

Under California Code of Civil Procedure sections 405.1 et seq. a claimant with a real property claim of probably validity may file and record a lis pendens in the County where the property is located. (CCP § 405.20). At any time during the pendency of the action, any person with an interest in the property may apply to the court in which the action is pending for an order expunging the lis pendens. Prevailing on the merits of the plaintiff’s claim does not automatically expunge the lis pendens.

Expungement of the lis pendens must be made by noticed motion in accordance with CCP section 405.30; Mix v. Sup. Ct. (2004) 124 Cal.App.4th 987, 996. Mix held that on motionby the defendant following a determination of the claimant’s right to title, the lis pendens shall be expunged, unless the trial court finds that its own decision is likely to be overturned on appeal. The decision to expunge the lis pendens, however, must be made by noticed motion and does not occur automatically by entry of judgment. Similarly, the expungement cannot be included as part of the final judgment, because there is no right to appeal the expungement of a lis pendens. “Decisions on motions to expunge lis pendens fall into that class of trial court orders which are expressly not appealable; intermediate appellate courts only reach them via petitions for writ of mandate. See CCP § 405.39. “No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate.”

Thus, if your client prevails on a real property claim involving a lis pendens, be prepared to file a motion for expungement to have it removed. The order expunging the lis pendens may not be recorded until the time period for filing a petition for writ of mandate under CCP § 305.39 has expired.


Changes to the State’s Rules of Professional Conduct

The Supreme Court of California has approved a series of changes to the state’s Rules of Professional Conduct. It is the largest comprehensive set of rule changes in California in 29 years.

Since March 2017, the State Bar of California has asked the Supreme Court to approve 70 new or amended rules. The court ultimately approved the rules, modifying 42 of those proposed. All of the new rules became effective November 1, 2018.

Here are two stand-outs, that took a lot of time and debate according to the ABA Journal:

Rule 1.2.1: Duties of lawyers when advising clients on breaking the law, which the high court had sent back for revisions to its comments. Among other things, the approved commentary guides lawyers on advising clients on state laws that may conflict with federal or tribal laws—a likely reference to California’s legalized marijuana industry.

And, among California’s new rules is a controversial one: Rule 8.4.1, prohibiting discrimination, harassment and retaliation by attorneys. It gives lawyers at law firms the responsibility to advocate for corrective action if they know of harassing or discriminatory conduct by the firm or its personnel. This permits the State Bar of California to open an investigation into the prohibited behavior without a finding from another agency. The rule was “the subject of intense debate during drafting.”


With locations in Palm Springs, CA, Princeton, NJ, and Manhattan, NY, SBEMP’S Litigation practice group offers a wide range of specialized litigation services for private sector companies, public agencies and individuals. Our litigators represent clients in an array of civil disputes, including: intellectual property, personal injury, complex business and real estate, trusts and estate, construction defect, owner, contractor/sub-contractor disputes, eminent domain and condemnation, homeowners’ association and hospitality, partnership disputes, tribal, healthcare, first amendment, and defamation.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Recent Victory for SBEMP: Court Grants Motion for Temporary Restraining Order

The San Bernardino County Superior Court granted a motion, made on behalf of the City of Needles (Plaintiff) for a temporary restraining order against an occupant of a home in Needles (Defendant) who had been operating an illegal marijuana cultivation facility. Slovak Baron Empey Murphy and Pinkney LLP (SBEMP) represented Plaintiff.

After executing an administrative warrant at the property, the City found the illegal operation and counted 1,600 marijuana plants on the property. The City and the State both have comprehensive rules regarding marijuana cultivation, continually violated by the Defendant.

Despite the City’s issuance of a Notice of Violation, the Defendant continued the operation of the unlawful marijuana cultivation.

SBEMP argued the City is entitled to temporary injunctive relief under Civil Code sections 3491 and 3494, which authorize the abatement of a public nuisance through injunctive relief, and Health and Safety Code section 11573.

The Court found that the property constituted a nuisance pursuant to Health and Safety Code section 11570 and issued a temporary restraining order.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

SBEMP Wins in Court of Appeals For Morningside Community: Court Denies Anti-SLAPP Motions

Case Summary

Plaintiffs and Respondents, homeowners in the Morningside community in Rancho Mirage, challenged an amendment to their homeowners association covenants, conditions and restrictions (CC&Rs) that imposed a $250 monthly assessment against non-members to subsidize the costs of maintaining The Club at Morningside members-only golf and tennis club in the residential desert community. The Club’s members were not required to pay the new assessment.

Plaintiffs sued several defendants, including appellants The Morningside Community Association and its directors, the Club at Morningside and its directors, and Peters & Freedman LLP, and David M. Peters, lawyers for the Association.

Defendants responded by filing Anti-SLAPP motions.

Slovak Baron Empey Murphy & Pinkney LLP represented the Plaintiffs and Respondents. The trial court denied Defendants’ anti-SLAPP motions, and the Court of Appeals recently affirmed. Shaun Murphy opposed the anti-SLAPP motions in the trial court and Wendy Dowse handled the appeal.

Case Background

The Association manages the common areas of the Morningside Community. The Club is located within the Morningside Community, but not all members of the Association are members of the Club. The governing boards of both the Association and the Club collaborated, with legal assistance from the Peters Defendants, and proposed a new $250 assessment on each resident. While all Morningside homeowners would be charged the assessment, Club/Association Members would receive a credit of 100 percent of the monthly payment towards Club dues.

The adoption of the new assessment required a vote to amend the CC&Rs, approved by a majority of the residents. The Association retained Mr. Peters as the “independent” inspector of elections. During the election, Association directors requested and obtained confidential voting information from the Peters Defendants, and used the information, before the election was completed and votes tabulated.

The Peters Defendants supplied information (including ballots received and cast) to the Association’s directors, including a list of members who had not voted. The Club then used that information to call Club/Association Members. For example, an Association director and Club Member sent an email to the Association General Manager, an Association director, and the Club General Manager, stating: “I just spoke with Dave Peters. Because I asked him for the list of who has voted he is sending it to me. If someone else asks him for it he will send it to them. Let’s keep this absolutely between the four of us… [We] will have to just ask people to call certain numbers without telling them you know they haven’t voted.”

The majority approved the amendment to require the minority to subsidize the Club. Plaintiffs subsequently filed suit to challenge the validity of the new assessment. Plaintiffs’ complaint identifies a number of acts of alleged misconduct surrounding the election on the Propriety Fee, and includes causes of action for negligence, breach of fiduciary duty/conspiracy to violate election statutes, fraud/deceit restitution and declaratory relief.

Conclusion

The trial court denied Defendants’ anti-SLAPP motions, concluding that Plaintiffs’ causes of action based on the election did not arise from protected activity. On October 31, 2018, the Court of Appeal affirmed, holding that Plaintiff’s causes of action did not arise from protected activity, and that Plaintiffs are likely to succeed on the merits of their claims.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Palm Springs

Orange County

San Diego

Princeton

New York

Palm Springs
1800 East Tahquitz Canyon Way
Palm Springs, CA 92262
Orange County
650 Town Center Drive, Ste. 1400
Costa Mesa, CA 92626
San Diego
2240 Fifth Avenue
San Diego, CA 92101
Princeton
103 Carnegie Center Blvd., Ste. 101
Princeton, NJ 08540
New York
405 Lexington Avenue, 26th Floor
New York, New York
SBEMP