What You Need to Know About Fraud in California

Fraud is something that can get anyone tangled up. Most fraud cases do not come at the hands of random people or strangers, but occur through someone who was trusted and then got swindled. This is a big issue because people who are victims can quickly become embarrassed and unwilling to share what happened to the proper authorities.

Across many jurisdictions, fraud is both a criminal and civil matter, even though fraud has a narrow legal definition. In California, there are activities that seem like they constitute as fraud, but are not seen as such in a court of law.

There are a few different categories of fraud. These include a deliberate misrepresentation of a fact that was knowingly false, especially if an individual believed that fact to be true.

Another is the deliberate hiding of a fact by a fiduciary, or the negligent misrepresentation of one, that a victim relied on and was harmed as a result.

These definitions can be a bit vague, but the important fact about fraud is that it takes place when another party betrays the trust of someone. Fraud can also take place amid complex transactions, making it even harder for people to pick up on.

One of the best ways to catch fraud is to simply keep detailed records, especially with your financial transactions. Holding onto receipts, bank statements, and any other financial records makes it a lot easier for an experienced professional to get a grip on fraudulent activity and take the proper steps to remedy an issue.

Click here to learn why you should have a lawyer review your contracts!

Always make sure to have a clear grasp of any terminology in a contract before signing, especially if it has to do with a large sum of money. Many people get tricked through deceptive or confusing language. Do not hesitate to enlist the advice of our experienced attorneys to look over an agreement or deal before you sign.

Another way to cut down on risks of fraud is to simply make sure you deal with the right people. Check out reviews and recommendations before engaging with a business, and make sure they have proper licensing as it pertains to California law.

The legal system in California gives people a few options if they have been defrauded, as most of the recovery from such a case will come in the form of damages.

The most common measure is the “out of pocket” rule in California. This makes sure people get compensated in a fraud case for the money they actually lost.

Another one is called the “benefit of the bargain” rule, which gives people the difference in what they thought they would get minus what was actually received. It is important to note that debt is not able to be discharged during bankruptcy for instances of fraud. People who have committed fraud are mandated to pay back their debts, even if they go into bankruptcy.

If you feel like a victim of fraud, be sure to talk to our legal experts for your case. Our attorneys will be able to review and give you advice in the pleading stage of your case.

Do you have a question about fraud in California? Click here to contact Von Esch Law today!

Courtesy of Cuselleration

6 Reasons a Parent May Lose Custody of a Child

There are a number of reasons a parent might lose custody of a child. Some might be pretty obvious, while others may be a bit more surprising. In general, a parent will lose custody of a child in cases of abuse, neglect, or other findings related to domestic violence.

Here are six different reasons a parent might lose custody of a child.

Abuse: One of the most common reasons a parent loses custody is due to abuse. There are a variety of types of abuse. One is physical, which can lead to burns, wounds, and scars. Often, abusers will use their hands or other objects to cause injury to a child.

No matter the jurisdiction, the law is very clear. Abuse that is reported to the proper authorities is a legitimate reason for a parent to lose custody. Oftentimes, parents who have been convicted of child abuse can lose both physical and legal custody of children and might have their parenting time severely limited, or even cut off entirely.

Click here to learn facts about child custody agreements!

Abduction: Those who choose to abduct a child can also lose custody depending on the case and where the crime took place. Some parents who choose to abduct their children can lose legal or physical custody of them depending on the circumstances.

False Allegations: Even though abuse is a well-known way to lose custody of a child, false allegations of abuse can also lead to a loss of custody. A parent that knowingly lies about allegations of physical or sexual abuse can lose custody, depending on how serious the allegations are.

This is a serious issue because the law is very clear on punishing people who try to interfere with the other parent’s lawful contact with their children by making allegations of abuse. Courts have no problem taking custody away from a parent that makes false allegations to protect the health and safety of the children involved.

Neglect: Neglect is another reason a parent might lose custody. This type of abuse centralizes around a failure to act where a child might not be getting the food and care he or she needs. Parents can lose custody by neglecting their children if a court finds the child was endangered in any way, especially if the neglect is ongoing. However, neglect can be hard to prove since it can be difficult to pick up on unless someone regularly sees the children.

Domestic Violence: Domestic violence can lead to a parent losing custody of a child if the court finds it appropriate. This topic is pertinent because it usually comes up in a family law case where questions about abuse and neglect of a child are already present.

Violation Of Custody Orders: Violating orders related to the custody of children can also be a way to lose further custody, depending on the actual mechanics of the case. Violations of these types of orders can be very mundane, like being late for an exchange, to something more willful, like making a decision without talking to the other partner.

Do you have a question about child custody in California? Click here to contact Von Esch Law today!

Courtesy of Cuselleration

Facts About the Right to Repair Act

You probably hear a lot about ‘damages’ when it comes to attorneys and litigation. But what do damages really mean? There are two types of damages, actual and economic. Actual damages encompass physical injuries and property damage, while economic damages centralize around the cost of a repair that did not encompass a physical injury or lead to property damage.

A good example to think about both has to do with construction. Actual damages would consist of things like a bad roof that leads to water damage, or even a collapse that injures someone inside of the building. Economic damages would have to do with the actual cost of repairing or replacing the bad roof, aside form any other property damage or injury claims.

Background

In 1998, the California Supreme Court said economic damages from construction defects are not able to be recovered in instances of negligence or strict liability. They made this ruling in Aas vs. Superior Court.

In response, the Right to Repair Act came into effect. The Act says homeowners in newly constructed housing can sue for economic damages if the residence did not meet certain construction standards.

The Act came into existence thanks to the work of legislators in California through SB 800. The intention of SB 800 was to mitigate the effects of the Aas decision.

Here’s a few facts about the Right to Repair Act to keep in mind.

It applies to all claims relating to construction defects

Homeowners also have the ability to file a claims related to personal injury, breach of contract, strict liability, and fraud, without having to adhere to the pre litigation stipulations spelled out in the Act.

It now covers more than just economic loss

A California Supreme Court Case in 2018 said the Act can now cover cases relating to property damage that arise out of defects related to construction.

Click here to learn about financial fraud laws in California!

It is now the exclusive way to recover property damages that are related to construction defects

However, personal injury damages are still outside the scope of the Act and are not listed as a recoverable category.

Homeowners must still comply with the pre litigation procedures spelled out in the Act even if their construction defect is not specifically listed in the Act

The California Supreme Court, when taking on this question, said homeowners are not able to bypass the pre litigation procedures because the Act has a ‘catchall standard’ in addition to the specific construction standards that were listed.

The decision by the California Supreme Court was seen as a big win for builders, contractors, manufactures, and design professionals

This was because of a couple of reasons. First, the vast majority of claims still had to go through the pre litigation procedures as spelled out in the Act. It also substantiated that the Act still applied to construction defects that were not specifically laid out in the jargon and wording of the Act itself.

The Right to Repair Act might seem like a complicated piece of legislation. There’s an extensive amount of background that corresponds with how it’s interpreted and seen today. Overall, homeowners do reserve the right to bring claims, but usually still have to go through a pre litigation process, except in certain instances.

Do you have a question about the Right to Repair Act? Click here to contact Von Esch Law today!

Courtesy of Cuselleration

5 Things to Know About Spousal Support in California

Alimony is always a contentious subject to navigate, especially when it is in the context of a divorce. Most people understand the basics behind alimony, where a higher-earning spouse makes regular payments to the other partner, but there are still a lot of misconceptions about alimony and its presence in divorce proceedings.

Our experienced attorneys will be able to review the circumstances surrounding each divorce case and give advice and counsel about spousal support laws, and how they might be impacting a case.

One of the biggest points of confusion stems from the fact that each state has their own laws and requirements related to alimony. Alimony is commonly known as spousal support. Here are five things to know about spousal support in California.

1. Spousal Support Is Not Necessarily Set Forever

Circumstances surrounding spousal support can change, and one side can petition to make changes to the support that was originally ordered in settlement agreements. For example, a paying spouse who is in an accident and finds income being diverted to medical bills can work to possibly modify the terms of support. However, both sides will have to agree to any changes, or you might have to go to court to settle any disputes if an amicable change is not able to be reached.

2. Spousal Support Stops After Death

Spousal payment requirements terminate once either spouse passes away. This means a payor spouse’s estate will not be held responsible to keep up with payments. If the spouse being supported passes away, their estate is not allowed to petition the payor spouse for funds.

3. Spousal Support is Only Allowed for Financial Purposes

In California, spousal support is only awarded for purposes related to finances. It is not doled out due to misdeeds like adultery, and it can not be used as a tool to punish bad behavior. However, a judge is able to withhold support if a supported spouse carries out an act of violence against the would-be payor.

4. Spousal Support Is A Calculation of Multiple Factors

There is no set algorithm or calculation used to decide the amounts of spousal support. All instances are calculated based on the specific circumstances of a couple. Judges in a case will weigh multiple factors before deciding on amounts, like marriage duration, ages, health, income, employment ability, and ability to pay.

Generally, spousal support is set to be somewhat equal to the standard of living a supported spouse was able to have during the marriage. In California, spousal support is also able to be tax deductible for the payor, as long as they are not filing joint taxes with the supported spouse.

Click here to learn California property division laws!

5. California Has Multiple Types of Support

California divorce cases have the option of allowing temporary or permanent spousal support. Temporary support is one that might be mandated before a divorce is officially finalized, and will not carry over once the divorce is rendered official. It is used as a tool to make sure the lower-earning spouse has enough money to be provided for during proceedings.

On the other hand, permanent support comes in the form of regular payments from the payor spouse to the supported one. This is mandated for a specific period of time after a divorce is finalized, and is intended to help the supported spouse maintain a financial level they had during the marriage itself.

Do you have a question about spousal support in California? Click here to contact Von Esch Law today!

Courtesy of Cuselleration

3 Reasons You Should Have a Lawyer Review Your Contracts

It can be tricky as an entrepreneur to call up a lawyer to review a contract. But failing to do so can have devastating consequences for your business.

A lot of things can go wrong thanks with a bad contract. You could end up forking over a lot more money than you should. You could lose your rights to valuable property, and even expose yourself to risky (and costly) lawsuits.

Therefore, it is important to spend the money on having a lawyer review contracts. It will be a lot more expensive for an individual to come in at the end of the day to revise and fix a bad one.

Here are three reasons why you should have a lawyer review your contracts.

1. Courts Find Them Easier to Enforce
A good contract means that it holds weight in court. But a generic contract or one you wrote yourself, thanks to the internet might not be able to actually be enforced in your area.

If you’ve chosen to broker an oral agreement, it might not even be valid for certain types of transactions.

On the other hand, contracts that have been reviewed and edited by a lawyer ensures that important jargon and terms are included so the contract is valid. Plus, a good lawyer will make sure the agreement is up-to-date based on state laws.

This is particularly important when it comes to non-compete agreements. They can be a variable way for you to keep talent from working with a competitor, but a non-compete you crafted yourself probably will have some sort of error that could make the whole agreement non-enforceable.

2. Contracts Reviewed or Written by an Attorney Are Thorough
Poorly written contracts, or one with glaring gaps, could open you up to disputes or expensive lawsuits. Lawyers are experts when it comes to contracts. They understand how to write them in a clear manner and how to mitigate any potential problems on the horizon.

A good attorney who reviews a contract will be able to fill in the gaps that someone might have missed and will have the legal know-how to suggest additional clauses.

Lawyers know that a good contract includes stipulations about what happens if one party does not hold up their end of the bargain.

Well-written contracts also take steps to limit your liability in a scenario that is beyond your control. Additionally, they will incorporate so-called “boilerplate” clauses that will minimize frivolous disputes.

With the help of a good lawyer, a contract becomes a document that helps resolve problems. It becomes something that can help shorten the length of any disputes, and make sure you stand a better chance of
winning the case.

Click here to learn the 5 ways for your business to avoid legal issues!

3. Attorneys Can Help Craft Contracts That Save You Money
An experienced attorney in your industry will know about the types of standard language and terms. As a result, their expertise will translate in a contract that favors you, their client.

Having an attorney look over a contract, or taking the steps to revise one, can be a useful way for you to potentially save a lot of money. An attorney on your side can give advice about how to push the boundaries in your favor, or at least advise you about reasonable terms and negotiation standards.

If you are writing a contract on your own, and the other side has an experienced attorney working on theirs, you might be subject to unfair terms or be put at a bad negotiating vantage point.

Overall, getting good legal advice when it comes to contracts can make or break your business.

Do you have a contract that needs to be carefully reviewed by an attorney? Click here to contact Von Esch Law today!

Courtesy of Cuselleration

Pro and Cons of Signing A Prenuptial Agreement

Nearly one million divorces happen every year in the US. According to a survey carried out by the American Academy of Matrimonial Lawyers in 2010, three out of 4 lawyers said there was an increase in the demand for prenuptial agreements over a period of five years.

A prenuptial agreement is a contract that a couple needs to sign before they get married. It stipulates how marital debts and assets will be divided in the event of a divorce. It also indicates what each party brings into the marriage and the assets acquired during marriage. Prenuptial agreements help minimize confusion, stress, and high legal fees in the event of a divorce or death. It is highly recommended for:

  • Couples with children from another marriage
  • Those entering another marriage
  • Couples with big age, debts, businesses, and income differences

Benefits of Signing a Prenuptial Agreement

  1. Minimize conflicts – In the event of a divorce, a prenuptial agreement will make it easier to distribute assets. It makes the divorce process faster, less traumatic, and more respectful. It can also help to speed up the court process, because it gives the court a clear picture of what the couple initially intended. Additionally, couples can state in the agreement how every asset will be divided among their children, helping protect their future inheritance.
  2. Debts – A prenuptial agreement enables the couple to have a clear distinction of their debts. It separates the marital debt from individual debt and it protects the debt-free spouse from assuming the debt responsibility of the other.
  3. Protection of property – A prenuptial contract is important since it helps to distinguish between spouses’ separate property and marital property. During a divorce, marital property is divided equally but separate property is not subject to division.
  4. Transparency – This form of agreement also helps promote transparency among spouses regarding each other’s financial situation. It gives a full disclosure of the assets and debts of each party, making each party aware of their partners’ spending and budgets. It also enables the couple to plan for their financial future.
  5. Spouse protection – In the instance of there being an agreement for one partner to leave their career to take care of kids, this agreement ensures compensation in the event of a divorce. A prenuptial agreement also limits the amount of spousal support paid by another spouse during divorce.

Disadvantages of Signing a Prenuptial Agreement

  1. Change of circumstances – Most couples sign a prenuptial agreement without anticipating the future. Due to life uncertainties, the agreement may get impacted, thus a need for updating it. These situations can arise due to sickness, career change, or children. Sometimes, the agreement can even be rendered useless.
  2. The validity of the agreement – The court will scrutinize every detail of the prenuptial agreement in order to establish the validity and enforceability of the contract. It can be rejected if it is established that during the making of the agreement, there was non-disclosure of some assets, absence of representation, fraud, or duress.
  3. Planning for a divorce before marriage – Prenuptial agreements are enforced when either a party dies or the marriage is dissolved. Many people view signing a prenup as accepting failure in the marriage before attempting it. Trust issues may arise as a result of a prenuptial agreement, leaving the spouses vulnerable to a divorce.
  4. Child support – The court is the final decision maker when it comes to matters regarding the children’s support and welfare. A prenuptial agreement should not involve child custody and support matters. The court will disregard an agreement that includes child support.
  5. Not necessary – Sometimes, couples may bring up this uncomfortable conversation, only to realize their state laws do not permit prenuptial agreements for certain issues. It is imperative that couples first look into the enforceability of prenuptial agreements within their jurisdiction.

A prenuptial agreement, if done well, is useful in the event of a divorce. Signing a prenuptial agreement is a personal decision that should be based on the individual’s specifics and circumstances. If you and your future spouse are weighing the pros and cons of signing a prenup, give us a call to set up a consultation with one of the members of our team.

How to Protect Your Business from Copyright Lawsuits

Think your company has the next ‘big idea’, good enough to break into your industry? Chances are, someone else has had the same idea. At Von Esch Law Group, we’ve seen too many start-ups and business owners face patent litigation from companies waiting to file lawsuits against unsuspecting entrepreneurs. Here are 4 tips for avoiding copyright infringement throughout each stage of your development.

  1. Be cautious if it’s not your own.

 

You may think this goes without saying, but so many business owners get caught in this tricky copyright trap. If a piece of content was not created by you or your company, whether in person or on the internet, a high level of caution is required when deciding if it’s acceptable to reuse. If you find content you want to use for business purposes, especially photographs and music, check the permissions or license to see whether you can use it for free or need to pay a fee.

  1. Big companies do care.

With so many massive corporations pushing out content daily, it can be tempting to take a small piece of their content – like an Instagram post or 3-second video clip – for your business’s personal use. However, more often than not, they’ll be looking out for this small form of plagiarism. New software has made it possible for companies to monitor any content being republished on the web, no matter how small. Play it safe and avoid this type of copyright infringement.

  1. Don’t forget to look for “fair use”.

While these infringement laws may seem scary, there may be a way around them. “Fair use” is an exemption offered to those who wish to use a piece of content with a copyright license for educational purposes. While this option requires you to read the fine lines, it often allows you access to otherwise prohibited content for educational use.

  1. Start early.

Just had an idea for a business, product, or service? It’s never too early to start researching the current patents associated with your idea. Whether you assign it to your development team or look into it yourself, thoroughly researching the copyrights related to your product can help you avoid a major headache (and lawsuit) in the future.

In addition to following these tips, our team at Von Esch Law highly recommends hiring a legal team to walk you through each step of your business or product development. We specialize in business law and have helped countless clients avoid costly lawsuits. Give us a call today to schedule a consultation with our team!

4 Facts You Should Know About Domestic Violence

When it comes to domestic violence, California already has special rules that have been put in place to combat this heinous crime. Domestic violence may consist of anything from threatening, stalking, abandoning, inflicting any kind of physical injury, or damaging of property. And as for the rule governing domestic violence, these crimes are distinguishable. They are of different types as mentioned above.

There are laws meant to protect victims who suffer from corporal injury from their current or former intimate partners. The California Penal Code can either be filed as a felony or simply a misdemeanor.

1. Domestic violence reports

In most instances, you may not entirely understand even what is mentioned in the police report regarding domestic violence. Men and women who are accused of inflicting violence are sometimes the victims of the crime. That is where you can make your judgment saying that the domestic violence system isn’t entirely 100% perfect, or even close to it, based on some arrests that the authorities may end up making.

In some situations, you find that these investigatory decisions are made based on the superficial factors only – not looking at the facts behind the scenes. For example, if the perpetrator calls 911 first on the victim or even looks to be more upset or had more apparent physical or any other kind of injury, there will most likely be a bias. In some situations, gender bias may

even come to play. Simply put, the time has come where abusers can now manipulate the system to their advantage.

2. The prosecutor’s charge

Before any judgment is ruled on the abuser, the victim plus his/her prosecutor first need to convince the jury, beyond any reasonable doubt, that corporal punishment was inflicted by an intimate partner. Only then, will the case even be considered to be a domestically violent crime. Distinguish whether the injuries were willful or intentional on the intimate partner. And whether it has caused any traumatic condition to the victim of the crime.

3. Did the injury sustained cause any traumatic condition to the victim?

Some people get angered pretty quickly and are light on their hands. Before they even notice it, their hands and/or feet are flying about hitting their partners. But even so, you still need to prove to the DA whether or not the strike was meant to cause the victim and unintended injury or not. Remember, though, that it is your actions that caused the victim to suffer any injuries in the first place.

4. Legal Defenses

You can use any number of the defenses mentioned below depending on the manner of your domestic violence case.

  • Lack of willful intent
  • False accusations
  • Self-defense
  • Lack of proof

Penalty enhancement situations may include:

  • Prior convictions
  • Great bodily injury
  • Child endangerment
  • Elder abuse

Do you have a question about domestic violence? Click here to contact Von Esch Law today!

Disability Discrimination in the Workplace

It is not an uncommon occurrence to find that the disabled in the society end up being discriminated in the workplace. But then again, it also isn’t a good practice to discriminate or undermine anyone who is disabled anywhere. Fortunately, California state laws offer protection for the disabled from any kind of discrimination at work.

Most of these state laws also prohibit an employer from subjecting any of their disabled employees to any kind of unequal treatment in regards to your actual or perceived disabilities. So, how will you know whether you are being subjected to any form of discrimination at work due to your disability?

Read below to find out.

What is disability discrimination?

If you are disabled in any way and working, then you can spot any kind of disability discrimination either from your employer or fellow employees quite easily. This unlawful habit may even start right from the moment you are applying for a new job. The moment you realize that you are being

treated unfavorably by your interviewer or employer qualifies as a disability discrimination. California also has laws that expect employers to provide reasonable accommodation to their disabled employees and/or applicants.

Definition of disability

A disability is a state of any medical condition which impairs activity. This can also include an employee’s ability to work optimally in the workplace. Disabilities can always take many different forms. Most disabilities are usually physical impairments. But you will also find situations where psychiatric conditions can hinder an employee or applicant from performing at work.

As a disabled applicant or employee, you also need to know that not all disabilities are protected by law. So, for you to be protected, you first need to qualify for a job, then see whether your California laws protect employees of applicants with your kind of disability.

Signs of disability discrimination in the workplace

Aside from the clear fact that California has put federal laws in place to protect the disabled from any kind of discrimination at work, disability discrimination occurrences still happen. The moment you realize that your employee is subjecting you to less favorable working environments due to your medical condition, you will know that you are being discriminated against. These forms of discrimination may include reduced working hours, denial of a raise and/or promotions, or even write-ups.

Common disability discrimination signs at work

  • Being threatened or even harassed due to your disability
  • An employer, not hiring you due to your disability
  • Being publicly shamed due to your disability
  • Verbal abuse by an employer due to your disability
  • Being cyber-bullied either by your employer or co-workers due to your disability
  • Being demoted as a result of your disability
  • Denial of promotions due to your disability
  • Being left out of staff meetings due to your disability
  • Contract termination as a result of your disability.

Do you have a question disability discrimination in the workplace? Click here to contact Von Esch Law today!

Von Esch Law Group Welcomes Newest Attorney David V. Luu

The Von Esch Law Group is proud to announce our newest attorney, David V. Luu. His extensive knowledge and experience will be a great asset to our law firm and our clients.

David has been the recipient of the California Rising Star Award for two consecutive years on top of other honors and awards such as the Litigation Clients’ Choice Award, AVVO Litigation Clients’ Choice, AAA rating from the Business Consumers Alliance, and A Rated from Better Business Bureau. It’s clear that David is someone who goes above and beyond for his clients in order to ensure the highest quality of service. Along with his incredible work ethic, David is also well-equipped with the knowledge and experience of handling areas of business law and real estate law. Clients can rest assured knowing they are in the most capable hands as David believes in working with each client to ensure they fully understand the result that they want and giving them a legal strategy to get there.

Among the dozens of his five-star reviews, David’s clients have expressed how pleased they’ve been with his services. “David was a blessing…He gives me hope for humanity.” “He is the most careful and client-oriented attorney I’ve ever seen.” “I could not be happier with David and his great service and I am forever grateful.”

The Von Esch Law Group understands that dealing with legal cases can be tough, especially when handling personal matters or high-stake cases. Hiring the right attorney can make or break the results of a case. Clients of the firm can be assured that every case with the Von Esch Law Group is entrusted in the hands of attorneys with reliable litigation experience. With the addition of David, we can continue to ensure the utmost respect and care for our clients.

Please join us in welcoming David Luu to the Von Esch Law Group! We are excited to have him as a part of our team.