Do You Need a San Diego Business Lawyer if You’re Forming a Partnership?

A San Diego business lawyer can provide assistance if you are forming a partnership to conduct business. There are significant advantages to operating a business with a partner, including combining talents and sharing risk. However, depending upon the type of partnership, there are also risks – including the possibility of becoming legally responsible for actions taken by any or all of your business partners. 

Making the right choices during partnership formation is vital to protecting your personal wealth and your business interests. Gehres Law Group can help you with all aspects of partnership formation, whether you are starting a business or expanding an existing company and considering transitioning to a partnership. There are a few key reasons why it is important for you to get the proper legal help with partnership formation as your company gets off the ground.

An Attorney Can Assist you in Determining If a Partnership is Right for You

If you wish to do business with others, a partnership is only one of your options for shared ownership. You should also consider incorporation as well. Gehres Law Group can explain the different types of business entities that allow you to do business with other people so you can determine which type of business structure is best for you.

An experienced San Diego business lawyer at our firm can also assist you in choosing between a general and a limited partnership. A limited partnership can offer more protection for the personal assets of limited partners, as their potential loss will be restricted to their investment provided they actually act as limited partners. In a general partnership, a company bankruptcy could result in personal bankruptcy and judgments or claims against the company could put personal wealth at risk.

A San Diego Business Lawyer Can Help Comply with Legal Obligations for Partnership Creation

If you determine that forming a limited or general partnership is the best approach for structuring your business, Gehres Law Group will assist you in complying with all legal requirements within the state of California. For example, as the California Franchise Tax Board explains, every partnership which earns income or does business in California is required to file a Form 565, Partnership Rules of Income. Limited partnerships also must pay an annual tax to the state of California.

When a limited partnership is formed, a certificate of limited partnership must also be filed with the Secretary of State. And, any business that formed a limited partnership in a different state which decides it wishes to do business in California must first register with the Secretary of State before actually doing any local business.

San Diego business lawyers will advise you on the types of paperwork that must be filed before you begin operations, and can help you to understand the legal implications of partnership formation. Gehres Law Group will also explain how your partnership formation will affect your tax obligations so you can ensure you comply with state tax rules and IRS mandates.

A San Diego Business Lawyer Can Assist With Creating Partnership Agreements

If you form a partnership, it is advisable to create a partnership agreement. This agreement will spell out the terms of your relationship so you can reduce the chances of conflict once business operations begin. It is up to you and your partners to establish how the business partnership will be structured, how responsibilities will be shared, and how profits and losses will be shared. Gehres Law Group can assist in negotiating on these issues and creating a legally enforceable document so your rights are protected.

We can also help with other important contracts and paperwork that you may wish to put into place to protect your interest in the business and to reduce the chances that a conflict could adversely impact operations. Other documents that you may wish to produce could include, for example, a buy/sell agreement and employment agreements so it is clear what each partner’s specific job responsibilities will be within the organization.

Getting Help from San Diego Business Lawyers

Gehres Law Group has provided assistance to many clients in forming business partnerships and in forming other types of business entities including S-corporations and C-corporations. A San Diego business lawyer at our firm can provide you with the information you need to determine if forming a partnership is right for you and can guide you through the process of forming a partnership so you can maximize the chances your business relationship will be a successful one. To find out more about how our firm can help you, give us a call at 858-964-2314 or contact us online today.

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What is Required to Register a Trademark?

A trademark lawyer at Gehres Law Group, P.C. can help you to determine if you can register a brand name, symbol, words, or phrase under U.S. trademark laws. If so, we will provide unmatched representation through the process of registering your trademark. There are certain legal requirements and limitations on what can be trademarked, so it is important to work within the rules to protect your company’s valuable intellectual property. 

What is Required to Register a Trademark?

Trademarks must be registered with the United States Patent and Trademark Office. To register your trademark, you must comply with the following requirements:

• The actual owner of the trademark must apply for registration. The owner could be an individual, a corporation, a partnership or another legal entity that is recognized under the law. The trademark’s owner is defined as the person who controls the services or the goods that are sold under the trademark.
• The application must contain information about the actual owner of the trademark. Information that must be submitted should include the type of entity as well as the entity’s citizenship status. Non-citizens are permitted to register trademarks.
• The owner must intend to use the trademark in commerce or must be utilizing the trademark in commerce. If the owner is already using the trademark and has placed it on commercial products or in ads for services, the owner should explain this use in his or her trademark application. If the owner is not yet using the trademark in commerce, the owner may file an intent to use application and must make a good faith statement of an intent to use the trademark in a commercial context. Once the trademark is in use, the owner will need to file a Statement of Use/ Amendment to Allege Use form in order to officially register the trademark with the U.S. Patent and Trade Office.
• The owner must submit a drawing of the trademark and, if the application for the trademark is based on actual use, should also submit a real-world example of how the trademark is being used in connection with goods or in connection with the provision of services. Submitting a mailed ad or a brochure using the trademark is considered an acceptable real-world example, or a valid “specimen,” of the trademark, but ornamental use of the trademark, such as its image on a tote bag or on a pen, is not typically considered to be an acceptable specimen unless documentation was included to show how the bag or pen were used in actual commerce. Submitting the specimen showing the trademark in use does not satisfy the requirement to submit a drawing of the trademark; a separate independent drawing must also be submitted along with the remainder of the trademark application.

The applicant must comply with strict rules regarding the timeline for filing forms and documentation with the U.S. Patent and Trademark Office. Because of the strict deadlines, the Patent and Trademark Office recommends hiring an attorney before beginning the process of applying for a trademark.

Getting Help from A Trademark Lawyer

If you wish to protect your brand name or to protect any identifying symbol, service mark, words or phrases, you should reach out to a trademark lawyer as soon as possible. Gehres Law Group, P.C. will offer advice on whether your intellectual property can be trademarked and will assist you with the trademarking process so you can maximize your chances of the process going smoothly. To find out more about how our legal team can help you to secure trademark protection, give us a call at 858-964-2314 or contact us online today.

For additional information concerning benefits of obtaining trademark protection and considerations in choosing trademarks, click here and here.

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What is Considered a Material Breach of Contract?

Our skilled San Diego business litigation lawyers at Gehres Law Group, P.C. can provide representation in breach of contract claims. Contracts are agreements created between private parties, such as between individuals and businesses or between two business entities. A valid contract creates rights and obligations between the parties to the contract, and provides various remedies when contractual obligations are breached, either expressly or by default based on applicable laws. All parties to a contract must comply with the written terms of the agreement and can face civil action if they fail to perform, unless they have a legally valid defense. 

There are a number of remedies available to a party to a contract in the event of a breach. The remedies that may be successfully pursued by a plaintiff in a breach of contract case will vary depending upon whether the breach is a material one or not, so those involved in contract proceedings should consult with the civil litigation lawyers at Gehres Law Group, P.C. as soon as possible to find out what type of breach likely occurred and what kinds of legal action they can pursue.

What is Considered a Material Breach of Contract

California law sets forth the essential factual elements of a breach of contract claim in California Civil Jury Instructions (CACI) section 303. According to the relevant jury instruction, a plaintiff can prevail in a breach of contract claim by proving:

• The plaintiff and defendant entered into a legally valid contract.
• The plaintiff fulfilled all contractual obligations or was excused from fulfilling said obligations.
• The specific conditions in the contract, if any, required for the defendant to perform his part of the contract were either excused or had occurred.
• The defendant failed to fulfill some obligation that the contract required or the defendant did something that was prohibited in the contract.
• The plaintiff suffered harm as a result of the failure.

When the plaintiff proves these elements of a breach of contract claim, the plaintiff could obtain monetary damages for failure to perform if the plaintiff can prove actual financial loss. The plaintiff could also demand other remedies, such as specific performance, which would involve the court ordering the defendant to fulfill his obligations under the contract.

While a breach of contract claim can arise from both a material and a non-material breach, the parties to a contract also have additional remedies available in the event of a material breach. For example, if there is a material breach of contract by one party, the other party can be discharged from his or her duty to perform. This makes it important to understand whether a breach was a material one or not.

The question of whether a breach is material or not is a question that must be considered in each case, given the unique facts and circumstances of that particular claim. The general rule is that an assessment of whether a breach is a material breach or not is made on the basis of how important and serious the breach was and is made on the basis of whether it is likely that the party injured by the breach has a low or high probability of the breaching party substantially performing the contract. If the breach goes to the heart of the contract and affects the very thing for which the parties created and entered into the contract, then the breach will typically be considered a material breach.

In Brown v Grimes, the California court made clear that a material breach of any part of a contract could constitute a material breach of the contract in full.

Getting Help from San Diego Business Lawyers

San Diego business lawyers at Gehres Law Group, P.C. can offer comprehensive, personalized advice on breach of contract claims and on all legal issues arising under contract law. Whether you require assistance in understanding your rights and obligations in a contract, or are suing or being sued for a failure to perform, our business lawyers can provide the advice and advocacy you need to protect your interests. To find out more about the ways in which our legal team can help you, give us a call at 858-964-2314 or contact us online to today.

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What is Required for a Contract to be Valid?

San Diego business attorneys at Gehres Law Group, P.C. can provide help in negotiating and drafting a contract that is legally valid. When you enter into a contract, one of your principal goals is to protect your legal interests. Contracts can facilitate many objectives, from guaranteeing on-time delivery of goods based on a promise from a supplier, to guaranteeing payment for services rendered. Because contracts are so important to protect your interests, it is vital that all contracts be clear and concise, and the terms enforceable under applicable law. 

There are specific requirements under the laws in the state of California which must be met for a contract to be legally valid. You should talk with an attorney to understand what is required for your contract to be enforceable so you can ensure that the contract you create is a valid one that provides the protections you expect.

Requirements for the Creation of an Enforceable Contract

California Civil Jury Instructions section 302 explain what parties must prove in order to demonstrate that a valid contract was created. According to these jury instructions, to prove the existence of a contract, it is necessary to show:

• That the terms of the contract were sufficiently clear so that each party could understand the requirements imposed by the contract. This does not mean that formal legal language cannot be used, and it does not absolve the parties to the contract of their obligation to read the contract and to perform their due diligence before signing it. This requirement, instead, simply makes it apparent that a contract will be unenforceable, or sections of it may be unenforceable, if it is so vague that the parties to the contract – or a judge or jury in a breach of contract dispute – cannot understand what the contract actually requires.
• That the parties exchanged consideration. This means that each party must have given something of value. Mutual promises (a promise to paint a house in exchange for a promise of payment) can be considered valid consideration. However, it is not valid consideration if one or both parties to the contract promise to do something they are otherwise obligated to do. For example, if Tim promises to give his nephew Pete $100 if Pete does not drink alcoholic beverages until Pete turns 21, this is not a legally valid and enforceable contractual agreement because Pete is legally required to abstain from drinking alcoholic beverages under California law, so he has given nothing of value in exchange for Tim’s promise of $100.
• That the parties agreed to the terms of the contract. The parties must have acquiesced to be bound by contract terms without any fraud or coercion. If one party intentionally misled the other in order to convince the other party to sign the contract, then the contract may be invalided, in whole or in part.

In addition to these general requirements, the parties to a contract must have the capacity to enter into a legally binding contract, which means neither party can be a minor and both parties must be of sound mind. The contract also cannot be void as against public policy or otherwise unlawful or it will not be enforced. For example, if Molly and Bailey enter into a contract in which Molly promises to pay Bailey $1,000 if Bailey kills Molly’s cousin, the contract is obviously not going to be a valid one. Similarly, if one of the parties has been diagnosed with dementia, their contract may not be enforced.

Getting Help from San Diego Business Attorneys

The experienced and trusted San Diego business attorneys at Gehres Law Group, P.C. can provide help with reviewing a contract you are considering signing or can assist with negotiating and drafting a contract. We can also provide representation if a dispute over the validity of a contract arises, if you have been damaged by non-performance of a contract, or if you are being accused of breaching a contract.

Whatever legal issues arise in connection with contract law matters in California, we can help you to resolve them. Give us a call at 858-964-2314 or contact us online today to schedule a time to speak with one of our business lawyers at Gehres Law Group, P.C. about the help we can provide with contract law matters in or out of the court room.

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5 Wage and Hour Rules Your Company Should Know

Business and employment lawyers in California can help ensure your company complies with state and federal rules and regulations so you can avoid fines, penalties, and civil lawsuits. If your company has employees, California’s complex wage and hour rules are among the most vital set of laws and regulations that your organization must adhere to. Whether you decide to study these laws or retain a knowledgeable attorney to advise you, it is critical that employers understand the state specific guidelines that govern how employees must be paid, what benefits and break times they are entitled to, and the types of conduct employers are not permitted to engage in with regard to their employees. Five of the key rules that your company should know include the following. 

Overtime Rules

The California Department of Industrial Relations indicates that overtime rules apply to all non-exempt employees aged 18 or older, as well as employees aged 16 or 17 who aren’t required by law to attend school. Click here for common exemptions to California’s overtime rules.

Unlike some jurisdictions, including federal over time law, California lawmakers have enacted both a daily and a weekly overtime rule. In California, all non-exempt employees are entitled to overtime if they work more than 40 hours per week or more than eight hours per day. Overtime hours are payable at a rate of 1 ½ times an employee’s regular rate of pay.

Minimum Wage Rules

California requires that all employees be paid at least minimum wage, with few limited exceptions. For employers with 26 or more workers, minimum wage began increasing annually in California as of January 1, 2017. For employees with 25 or fewer workers, minimum wage will begin annual increases starting January 1, 2018.

The state minimum wage beginning January 1, 2017 for larger employers was $10.50 per hour, while minimum wage for smaller employers continued to be $10.00 hourly. Minimum wage will increase in $0.50 increments annually through January 2022 for larger employers and through January 2023 for smaller employers, until minimum wage reaches $15 hourly. Employers should also be aware that some cities in California, such has San Diego, Los Angeles, and San Francisco have adopted ordinances establishing a minimum wage higher than the state minimum.

Workers Doing the Same Job Must be Paid the Same Wages

California’s Equal Pay Act prohibits employers from paying one worker less than another on the basis of gender, if the employees are doing equal work. The California Fair Pay Act, signed into law in October of 2015, strengthened the Equal Pay Act by requiring that employers now pay the same wages for substantially similar work, rather than just for equal work. The California Fair Pay Act also made it more difficult for employers to claim a bona fide factor other than sex to explain pay discrepancies and otherwise provided stronger protection for workers, making employers more vulnerable to lawsuits, including class action lawsuits, for equal pay violations.

Bi-Monthly Payments are Generally Required

Although there are some exceptions, the Department of Industrial Relations indicates that workers in California typically must receive pay at least twice per calendar month and workers must be paid on designated paydays, which occur on a regular schedule. Employers are also required by California law to post a notice in the workplace of when and where paychecks will be handed out. Overtime wages, like all wages, must be paid within the payday for the next regular payroll after the payroll period in which the overtime wages were earned.

Final Wages Must be Paid Immediately

Click here for further information on wage statement requirements.
If a worker is terminated, California law requires that the worker who was involuntarily discharged be paid all outstanding wages upon termination. Not only does a worker have to be paid all of his or her wages at the time of termination, but the employee must also be paid for any and all accrued vacation at the same time. If a group of employees are all laid off at the same time because seasonal employment related to fish, fruit or vegetables comes to an end, then those season employees have to be paid within 72 hours after being laid off.

Getting Help from Business Lawyers in California

The business and employment lawyers at Gehres Law Group, P.C. provide invaluable help to companies who want to comply with these and other wage and hour laws and to companies against which a wage and hour claim or lawsuit has been filed. California is a very worker-friendly state and it is the responsibility of your company to know what the rules are and to follow them to avoid being sued or to avoid other consequences, including action by state worker protection agencies.

Our experienced and award-winning employment law attorneys provide the assistance you need to protect your company when you hire staff members. To find out how our legal team can help you with wage and hour rules and other employment law issues, give us a call at 858-964-2314 or contact us online to today.

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