Tue 3 Jan 2012
Posted by admin under B&C Online Answers
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Irvine Trial Attorney Gregory G. Brown discusses a quick five-step process on what to do if you are sued.
Irvine Trial Lawyer Gregory G. Brown
Orange County Trial Lawyers Brown & Charbonneau, LLP
Irvine Trial Lawyers Brown & Charbonneau, LLP
http://www.bc-llp.com/Civil-Trial-Specialists/
http://www.bc-llp.com/Attorneys/Gregory-G-Brown.shtml
http://www.bcllpblog.com/trial/
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Wed 21 Dec 2011
Posted by admin under Trial Tips
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Thu 8 Dec 2011
Posted by admin under Business Litigation, Contracts & Agreements, Corporations & Partnerships, Fraud & Misrepresentation, Irvine business lawyer, Trial Tips
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A partnership may be formed whether or not the parties intend to form one, and its existence does not depend on a formal written agreement. Once a partnership is formed, then, it is important for you to know what your rights are in relation to the partnership accounts, recordkeeping, and partnership profits and losses.
Capital Contribution
The traditional “first step” in starting a partnership business requires a capital (usually cash) contribution by each of the partners into the partnership account. This contribution need not be equal, and the contribution itself is not necessarily required, as some partners may contribute their labor and skill to the partnership, rather than cash as capital. Regardless of the extent of capital contribution by each partner, the law deems each partner to have a “partner account” that is subject to several rules/limitations.
Partnership Profits and Losses
The initial partnership account is credited with the amount equal to the money and value of property contributed by the partner. As the partnership business progresses, the partner’s share of the partnership profits is added to this account. The division of profits (and losses) is left to the agreement of the parties.
Partnership Reimbursements
Any partner that acts in the “ordinary course of the business of the partnership” by making payments or taking on liabilities is entitled to reimbursement by the partnership. A partner is also entitled to reimbursement for any advance to the partnership beyond the amount of capital the partner agreed to contribute.
Recordkeeping
No partnership agreement can unreasonably restrict a partner’s access to the books or records of the partnership. This right of access provides the partner, its agents, and attorneys an opportunity to inspect and copy these books and records.
Actions for Accounting
In order to enforce your rights under your partnership, a partner may maintain an action of “accounting” against the partnership or another partner. An action for an accounting forces the partners to account to the partnership for any benefit or profits derived from any transaction connected with the formation, conduct or termination of the partnership or from any use of partnership property.
Other than actions dealing with the end of a partnership or the withdrawal of a partnership, partners are given the right to a formal accounting when:
• The right exists under the partnership agreement;
• A partner is excluded from the business or possession of its property by copartners; and/or
• Any other circumstances that render it just and reasonable.
Conclusion
It is important to stay informed about your partnership’s profits, losses, and recordkeeping. Know your rights when a partnership dispute arises.
Irvine Trial Lawyer Gregory G. Brown
Orange County Trial Lawyers Brown & Charbonneau, LLP
Irvine Trial Lawyers Brown & Charbonneau, LLP
http://www.bc-llp.com/Civil-Trial-Specialists/
http://www.bc-llp.com/Attorneys/Gregory-G-Brown.shtml
http://www.bcllpblog.com/trial/
http://www.bc-llp.com
714.505.3000
Wed 16 Nov 2011
Posted by admin under Announcements, Civil Litigation, Irvine business lawyer, Trial Tips, orange county trial attorney, trial
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The competition takes place on December 1st, 2011 at OCSC – Central Justice Center!
http://www.bc-llp.com/Civil-Trial-Specialists/
Fri 21 Oct 2011
Posted by admin under Contracts & Agreements, Orange County Business Lawyer
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Written by: Gregory Garth Brown
Attorney licensed in California
What is Rescission?
When a contract dispute arises, parties often look for ways to rescind the contract. A rescission is not merely a cancellation of a contract. Rather, a rescission will put the parties back to the day the contract was signed and the contract itself will be treated as if it never existed. This determination by a court requires the parties to the contract to return all consideration under the contract that had been received up to the point of the dispute. There are several different grounds for rescission of a contract in California.
Grounds for Rescission
In California, Civil Code §1689 governs when a contract may be subject to rescission:
Consent
Parties to a contract can agree to rescind an original contract between them without intervention by the Court. This can occur regardless of the express terms of the agreement. However, parties must complete the rescission by returning all consideration already given under the original contract.
Mistake
A party may rescind the contract on the basis of a “unilateral mistake”. This means that one party was mistaken about a material fact under the contract that the other party knew or suspected of and the party used that mistake to their advantage. However, if the mistaken party did not do their reasonable diligence in the contract, a unilateral mistake is insufficient for rescission.
If both parties are mutually mistaken about a material fact, then a contract can also be rescinded by either party.
Fraud or undue influence
When a party is “induced” into a contract by a misrepresentation of the other party and relies on that misrepresentation, the defrauded party can rescind the contract.
Failure of consideration
A party to a contract may also rescind a contract based on a failure of the other party to provide “consideration” for their agreement. A refusal or failure of a party to perform his part of the contract, or a clear intention to violate it, gives the other party the right to rescind. For example, a car buyer that fails to deliver the purchase price of a car to a seller after driving off with the car has failed to provide the “consideration” for their agreement. Thus, buyer may rescind the contract and take back the car.
Unlawful contract and public interest
Finally, a contract may be rescinded if it is against the law or if the public interest will be prejudiced by permitting the contract to stand.
Conclusion
Contract disputes can be complex, and each situation is different. It is important for any consumer or small business owner to have a basic knowledge of their rights and remedies under contract law. For more complex disputes, you should find an experienced contract litigator in your area.
Irvine Business Lawyer Gregory G. Brown
Orange County Business Litigation Lawyers Brown & Charbonneau, LLP
http://www.bc-llp.com/Civil-Trial-Specialists/
http://www.bc-llp.com/Attorneys/Gregory-G-Brown.shtml
http://www.bcllpblog.com/trial/
714.505.3000
Mon 9 May 2011
Posted by Gregory Brown under Business Litigation, Civil Litigation, Irvine business lawyer, Orange County Business Lawyer, Trial Tips, orange county trial attorney, orange county trial lawyer, trial
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Irvine Trial Attorney, Gregory G. Brown
Certified Trial Specialist – - Brown & Charbonneau, LLP
for more on trial practice, visit http://www.bc-llp.com/Civil-Trial-Specialists/
In good times and in rough times, always remember “The Doer”
“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”
Theodore Roosevelt
Irvine Trial Lawyer Gregory G. Brown
Orange County Trial Lawyers Brown & Charbonneau, LLP
Irvine Trial Lawyers Brown & Charbonneau, LLP
http://www.bc-llp.com/Civil-Trial-Specialists/
http://www.bc-llp.com/Attorneys/Gregory-G-Brown.shtml
http://www.bcllpblog.com/trial/
714.505.3000
Thu 24 Feb 2011
Posted by Gregory Brown under Business Litigation, Civil Litigation, Contracts & Agreements, Irvine business lawyer
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Visit our website: Brown & Charbonneau, LLP 
Written by: Gregory Garth Brown
Attorney licensed in California
In contracts law, a party who was not an original party to a contract may still have the right to sue on the contract in certain situations. This may be the case regardless of whether they were specifically named in the original contract. This outside party is known as a “third party beneficiary”.
Intended Beneficiaries
In California, the general rule is that a third party may be entitled to damages from the breach of a contract they are not a party to if they can prove the contracting parties intended for the third party to benefit from their contract. As mentioned above, a third party beneficiary need not be mentioned in the contract if they can show what the contracting parties intended to benefit the third party. Courts will instruct juries to look at the contract as a whole and the circumstances under which it is made to determine whether a third party is intended to benefit.
For example, if Party A contracts with Party B to deliver a new swimming pool to Party C, then Party C was the intended beneficiary of that contract though he was never a party to the original contract.
Incidental Beneficiaries
Unlike intended beneficiaries, a third party that has a mere “incidental” or remote interest in a contract between other parties will not have an enforceable right to sue upon breach of the agreement. For example, an insurance policy maintained by a lessor commercial property owner may only incidentally benefit a lessee restaurant owner in the event of an insurance dispute.
Has the right “vested”?
One has a “vested” right when they have a secured right to present or future enjoyment of a particular asset that cannot be taken away by a third party, even if they do not possess it yet. To determine whether a third party beneficiary right has vested, one must determine if the beneficiary knows of and has detrimentally relied on the rights created; if the beneficiary expressly assented to the contract at the request of one of the parties; or if the beneficiary files a lawsuit to enforce the contract. Once this right has vested, a party to the contract cannot rescind or modify the contract.
Conclusion
Contract disputes often involve numerous parties with varying degrees of enforceable rights. When negotiating or reviewing an agreement, it is important to expressly state the intentions of the parties on the face of the contract and ascertain whether any third parties may benefit from your agreement.
Tue 22 Feb 2011
Posted by admin under Announcements, Civil Litigation, Orange County Business Lawyer, personal injury, trial
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Gregory G. Brown receives Highest Possible Legal Rating for 2011
Irvine Trial Lawyer Gregory G. Brown
Visit our website for all the details:
Brown & Charbonneau, LLP Irvine Trial Attorneys
Irvine Trial Lawyer Gregory G. Brown
Orange County Trial Lawyers Brown & Charbonneau, LLP
Irvine Trial Lawyers Brown & Charbonneau, LLP
http://www.bc-llp.com/Civil-Trial-Specialists/
http://www.bc-llp.com/Attorneys/Gregory-G-Brown.shtml
http://www.bcllpblog.com/trial/
714.505.3000
Fri 11 Feb 2011
Posted by Gregory Brown under Business Litigation, Employment Matters, Irvine business lawyer
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For More Information, visit us at www.bc-llp.com
Written by: Gregory G. Brown
Attorney licensed in California
California, like almost all states, is an “at-will” employment state. “At-will” employment means that, unless you have an agreement or contract with your employer for a specified term or may only be terminated “for cause,” then you may be terminated for any (or no) reason at all, unless that reason is unlawful. On the same note, you may quit anytime you want, as well. An employer does not have to justify its actions, allow you to justify your actions, or even be fair or equitable in the process. You are, literally, at the will of your employer in this context.
Like any area of law, there are a few exceptions to the general rule that an at-will employee can be terminated for any reason. There are four main areas where the exceptions apply: (1) discrimination, (2) retaliation, (3) union workers, (4) implied contract. Keep in mind if you are considering bringing a suit under one of these exceptions that different time lines may apply, especially if the suit is based upon discrimination.
The main exception to an employee’s at-will status occurs where the termination is based upon an employee’s race, color, ethnicity, national origin, gender, age, or disability. The burden of proof is to show that you were treated less favorably than “similarly situated” employees that are not a part of your protected class (e.g. race, gender, age). If there is strong enough evidence to prove this discrimination was tied to your termination, then you may have a claim for wrongful termination. Both states and the federal government have discrimination laws. In California, the Department of Fair Employment and Housing is the appropriate entity to contact, whereas the Equal Employment Opportunity Commission is the federal equivalent. In either case, you need to first exhaust your “administrative” options first. This means, basically, that you need to file a complaint with the appropriate entity so that the entity can decide whether to investigate the complaint before you sue.
Another common exception to an at-will employee’s termination occurs when an employee is terminated out of retaliation. This occurs when the employer terminates the employee for engaging in protected activity. For example, an employee filing a complaint to the employer regarding any sexual harassment, discrimination, or participation in unlawful acts by the employer. In addition, an employee refusing to participate in unlawful acts is protected. If the employee is terminated afterward, and on that basis, then that employer has most likely violated the law.
The third exception involves union members. If you are a union member, you may have additional rights beyond those of an at-will employee depending on the strength and bargaining power of your union.
Occasionally, an implied contract to terminate an employee only for good cause can be created through the employer’s words or conduct. It has to be reasonable, though, for an employee to conclude that the employer will only terminate that employee with good cause. Some factors in deciding whether an implied contract has been formed are length of employment, raises, promotions, actions or communications on the part of the employer, and practices and policies of both the employer and the industry.
To pursue a successful claim for wrongful termination, the strength of your case depends on the evidence. To pursue a successful claim for wrongful termination, the strength of your case depends on the evidence. Documents, emails, texts and witness testimony is essential. If you feel you may have been wrongfully terminated, evidence gathering and critical case evaluation and assessment is critical. The earlier the better.
Wed 9 Feb 2011
Posted by Gregory Brown under B&C Online Answers, Business Litigation, Civil Litigation, Fraud & Misrepresentation
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For more information on Fraud, visit Brown & Charbonneau, LLP online at www.bc-llp.com
Written by: Gregory G. Brown, Certified Trial Specialist
Often, statements made in the business setting are incorrect, less than truthful or even complete lies. A representation may be made orally, in writing or by nonverbal conduct. However, claims for fraud or misrepresentation must meet specific elements to be considered actionable.
1. Fraud Generally
Fraud is an intentional tort. For a claim to be successful on this basis, there must an element of fraudulent intent, or an intent to deceive.This intent distinguishes a statement from actionable negligent misrepresentation and from non-actionable innocent misrepresentation.
2. Intentional Misrepresentation
For a claim for intentional misrepresentation to be valid, a party must show that defendant represented that an important fact was true, that representation was actually false, defendant knew the statement was false when it was made (or made it recklessly without regard for the truth), defendant intended the party to rely on the representation, the party indeed reasonably relied on the representation and was harmed by it and that reliance was a substantial factor in causing the harm. For example, in a real estate transaction, a statement by a seller that the roofing on the house was”installed last week” when it was actually 2 years old, would be an intentional misrepresentation if buyer reasonably relied on this statement and was ultimately harmed by it.
3. Concealment
Concealment is a common scenario whereby a party to a contract intentionally conceals an important fact. To prove as such, defendant must have intentionally failed to disclose an important fact, the other party was unaware of the fact, defendant intends to deceive by concealing the fact, the party reasonably relied on the representation and was harmed by it and that reliance was a substantial factor in causing the harm. Concealment arises most frequently in situations where there is a legal or financial relationship (“fiduciary duty”) between the parties, such as business partners.
4. Negligent Misrepresentation
Misrepresentations that are not intentional may still be actionable. The elements for negligent misrepresentation are nearly the same to those for intentional misrepresentation except that for negligent misrepresentation defendant need not know a statement was false when made. Instead, although defendant may have honestly believed that the representation was true, they had no reasonable grounds for believing its truth when the statement was made. If the statements were reckless or no true belief in their validity exists, a statement will still be considered intentional misrepresentation.
5. Opinions–usually not covered
Ordinarily, a statement of opinion made by a party typically does not form a basis for actionable fraud. An opinion in this context is best describe as a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value or authenticity. A statement of opinion may form a basis for fraud if it is made by an expert with special knowledge, declared in a manner so as to be construed as true, there is a special relationship or trust between the parties, or some other special reason which would allow reasonable reliance on the statement as truth.
6. Conclusion
There are countless variations of fraud, misrepresentation and deceit. The nuances between the different types are often difficult to ascertain. It is important to consult with an experienced fraud/business attorney if a party feels they have been a victim of fraud.
Additional Resources
http://www.sos.ca.gov/business
http://www.leginfo.ca.gov/.html/bpc_table_of_contents.html
http://www.irs.gov/formspubs/inde,.html
http://www.bc-llp.com/Business-Litigation
http://www.bc-llp.com/Articles
http://www.bcllpblog.com/injury
http://on-trial.net
http://www.bc-llp.com
714.505.3000
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CACI Jury Instructions
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