Monday, 13 August 2018

5 Key Differences Between California State Court and Federal Court

If you are involved in business litigation in California, the court system in which your case is heard can have a significant impact on the outcome. The California State Court system differs notably from the federal courts in California in many ways, particularly surrounding the following factors.

 

  1. Jurisdiction

In order for a court to preside over a case, it must have jurisdiction in the matter. Federal courts have jurisdiction over cases involving a purported violation of a federal statute or a constitutional matter, such as a party challenging a state or federal law based on the United States Constitution.

 

Federal courts also hear cases with diversity jurisdiction, meaning the plaintiffs and defendants have their principal places of business in different states. The amount in controversy in a diversity jurisdiction claim must exceed $75k in order to reach federal court. For example, if a business in California fails to pay a New York-based vendor $80k for services rendered in a signed agreement, this breach of contract could invoke federal diversity jurisdiction.

 

Diversity jurisdiction becomes much more complicated with multiple defendants, new defendants arising during a case, and motions to remove from state to federal court. It is important to hire an experienced California business attorney to navigate these nuances.

 

  1. Judges

California judges are elected, while federal judges are appointed. Because of this difference in authority, federal judges are typically required to possess deeper experience and higher credentials than state judges. That is not at all to dismiss the experience and credentials of state judges, but rather, highlight the fact that federal court is the pinnacle of the profession.

 

  1. Formality

Because federal judges have often held positions with prestigious law firms, run highly successful private practices, and/or served as federal prosecutors, they are much more rigid—as is the federal court system in general, even at the clerk level. They are strict with their rules, and by the book with their processes and documents. Federal courts are usually unbending in their application of the Federal Rules of Evidence, whereas California state courts adhere less strictly to the California Evidence Code. California has a reputation for being relaxed all around; this can, to an extent, be said of its courtrooms compared to federal court.

 

  1. Cost

The rigidity of federal court makes a federal lawsuit more expensive to litigate than a state lawsuit. No lawsuit is cheap, of course, and alternative dispute resolution such as mediation is often recommended prior to going to court. It is usually wise to include an arbitration or mediation clause in your business contracts to make litigation the last resort in a claim against your company, or prevent courtroom litigation of most issues.

 

  1. Jury Pool

In California State Court, you will be assigned to the courthouse that is nearest geographically either to your place of business or to the place of the incident in dispute. Your jury pool will be drawn from that same judicial district. If you file a lawsuit for a transaction that took place in North County San Diego, for instance, your case will likely be heard in Vista, Calif., where the San Diego Superior Court is located. The jury pool, then, will be from Vista and the surrounding area—a dramatically different demographic than that of, say, Downtown San Diego.

 

A federal court, meanwhile, will draw jurors from throughout the county where the case is heard rather than a single concentrated area. There are fewer federal courthouses than state courthouses in California, usually one federal courthouse for each county, although that one courthouse may have dozens of courtrooms. Litigators need to be cognizant of which jury pool will be best suited for their client, among many other factors.

 

Choosing a California Business Attorney

Where you file can be just as pivotal as what you file; seek counsel from the San Diego business attorneys at Gehres Law Group, P.C. Our team is extremely familiar with both the state and federal court systems, and can explain to you the potential risks and benefits of each option. It is worth every bit of our time and energy to consider the court that will give you the greatest advantage and/or the least disadvantage in your case. Schedule a free consultation today.

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Tuesday, 3 July 2018

Is it Copyright Infringement? Let’s Find Out

When you produce a unique work from your own vision and ideas, naturally, you are inclined to protect it from being reproduced and/or attributed to someone else. The self-fulfillment of contributing to the world is the reason creative expression has been at the heart of culture since the beginning of time. Factor in the potential commercial value of creative works, and a “copycat” is simply unacceptable.

It’s not just musicians and artists who must protect their work. Today, businesses of all types and sizes turn to copyright law to safeguard their brand assets. Whether you are the former or the latter, this brief guide will help you identify instances of copyright infringement.

 

What Type of Work is It?

United States copyright law protects literary, musical, theatrical, choreographic, motion picture and audio-visual works. Architectural works, engineering designs, and software code are also protected under Title 17 of the U.S. Code, which governs most copyright issues. In order for any of the above to qualify for copyright under federal law, the work must be fixed or tangible, meaning it is preserved in some form that is capable of being reproduced.

Works that you are not able to copyright include typography, symbols, contents lists, processes, procedures, common property (such as charts or calendars), and works in the public domain. Names and slogans cannot be copyrighted and must instead be registered as trademarks. Copyright law can be confusing when it comes to deciphering what can and cannot be copyrighted. Therefore, it is best to consult a business attorney that specializes in copyright registration to determine which works are subject to copyrights.

 

Is the Work Registered?

It is true that common law grants copyright immediately upon publishing a work. However, common law copyright does not provide the same protection as a federally registered copyright with the U.S. Copyright Office. In order to file a lawsuit for copyright infringement and seek statutory damages, your work must have a federal registration on file.

 

Did the Other Party Have Access to the Original Work?

If you have a federally registered copyright and believe your work has been infringed upon, you must be able to prove that the infringer had access to the work. Any opportunity for the infringer to be exposed to your work constitutes access. In today’s connected world, access is usually the lowest barrier to pursuing an infringement claim (especially considering works published digitally). Nevertheless, access must be present and demonstrable in order for an infringement claim to move forward.

 

Is the Copied Work Substantially Similar to the Original Work?

While access is often relatively easy to prove, similarity is where copyright infringement earns its notorious name for debate. There are certainly cases in which large or critical portions of a work – such as a song melody – are egregiously reproduced. More often, though, the “substantial” or “striking” similarity lies in a grey area. Because there is rarely direct evidence of the work being physically copied, copyright law involves several tests surrounding the “ordinary observer,” concept, feel, pattern and other guidelines.

In short, a successful infringement claim will require proof that the work was not only copied, but, moreover, copied in an identifiable and meaningful way.

 

Is it Fair Use?

With the volume and infinite nature of creative works, copyright and free expression can, at times, be opposing forces. The fair use doctrine permits use of copyrighted material, without permission or license, in certain cases. These cases include education, research, news, and parodies. There are four factors considered in determining fair use:

  • Purpose and character of the use – Courts typically allow non-commercial use, especially when the reproduction is transformative.
  • Nature of the copyrighted work – Courts will consider the level of creative expression.
  • Proportion of use – Using a sample of a copyrighted work usually aligns more with fair use than reproducing the work in its entirety.
  • Effect on original – If the reproduced work harms the market for the original work, fair use might not be granted.

To learn more about fair use, click here.

 

Do You Have the Right Attorney?

We cannot stress enough that copyright is one of the most complex areas of law. Just as consumers need to be aware of the seriousness of copyright infringement, businesses should properly register and police their work accordingly. Applying years of experience in copyright and business law, Gehres Law Group, P.C. can assist with copyright registration and, when applicable, pursuing a copyright infringement lawsuit. Click here to learn more, or call us at 858-964-2314 to speak with one of our San Diego business attorneys.

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Tuesday, 17 April 2018

What to Look for in a Business Attorney

Every business owner needs a reliable business lawyer. You have seen the articles – including our own – outlining what to look for in a business attorney. Experience, expertise, communication, professionalism, and availability are absolute musts. But what if you’re considering several different attorneys who all appear to have the foundational traits? Let us help you drill down a little further to find the right match in a business lawyer.

  1. Honesty

When we allude to honesty in a business lawyer, we’re not talking about simply telling the truth. That should be a given. What you really need is someone who is going to be 100 percent direct with every message they deliver. Many attorneys will sugarcoat or even hold back details that a client might find alarming or worrisome. This is a disservice, because as a businessperson, you need to have all the necessary information to protect and defend your business, whether it’s what you want to hear or not. We won’t steer you toward brutal honesty; you don’t want someone who’s downright mean. Let’s call it unfiltered information sharing.

  1. Growth

The goal in business is to grow and thrive. Ideally, your business lawyer will exhibit and exemplify growth in their own practice. If a lawyer has been running a one-person practice for decades, it could be a sign that they have not experienced for themselves many facets of business law in which you might be asking them for advice. For business and law firm founder, Tina Gehres, one of the most rewarding aspects of owning a practice has been growing Gehres Law Group, P.C. into a team of San Diego business attorneys serving companies of all sizes in a variety of industries.

  1. Efficiency

In order for an attorney to be able to provide affordable legal services, they must have processes in place for every step of their counsel. For example, in business litigation, the attorneys at Gehres Law Group, P.C. typically invest more time upfront identifying potential risks and challenges than most business attorneys. We do this because we know that it will help us develop a complete strategy and avoid potential pitfalls that could otherwise lead to additional legal fees or worse, compromising a client’s interests.

Contrary to popular belief, high-demand lawyers are not looking to rack up unproductive hours billed to clients. Instead, they seek solutions that allow them to provide the services clients need without any wasted motion or excess fees. The more streamlined an attorney’s practice is, the more affordable they can keep their fees, the more likely their clients will return and refer others to them, and the more clients they can serve overall. It’s a winning formula for everyone.

  1. Specificity

Experience is a prerequisite in law. Yes, you certainly want someone who has a track record of success. What you also want, however, is an attorney who possesses experience that fits your specific needs. Business owners in the e-commerce, real estate, and professional services industries should know that we have worked with many clients who require similar services and knowledge. We understand that companies who utilize e-commerce as part of their business model, for instance, often need impenetrable trademark and copyright protections in place. This is because of the vast exposure e-commerce provides and the inevitable bad actors who will attempt to steal the profitable ideas of others.

With that said, if you can’t find a business attorney with deep expertise in your industry, that is no reason to pass on someone you believe will take the time to adapt. You can recognize a lawyer of this caliber even in an initial consultation. They will ask questions surrounding your business challenges, terminology, experiences, and industry standards.

  1. Versatility

Business law is complex and wide-ranging. If you had to hire a new attorney for every need that might arise, your contacts list could grow by the day. In the same way you rely on your accountant to manage all of your finances, you should be able to pick up the phone and call your business lawyer for consultancy on corporate law, contract law, trademarks and copyrights, employment law and, if necessary, business litigation.

Gehres Law Group, P.C. specializes in all of the above, including the many areas within each practice. For example, employment law alone encompasses wage and hour laws, workers’ compensation, unemployment compensation, disability insurance, anti-discrimination laws and much more. Contract law, meanwhile, spans indemnity, operating agreements, licensing, royalties, franchising, joint venture agreements, employment agreements and virtually every other type of contract a business might need written, reviewed and enforced. We have the knowledge and experience to provide comprehensive representation with the highest integrity. Review our attorney bios here.

Credentials aside, Ms. Gehres and her team will work tirelessly to protect your interests and provide timely access to reliable legal counsel for your business. Contact us today to learn more. Your first consultation is free.

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Tuesday, 27 March 2018

What is Mediation?

When two parties are in a dispute, it is typically wise for them to consider alternative dispute resolution (ADR) prior to or pending litigation. Mediation is a form of ADR in which a neutral third party—usually a trained mediation attorney or retired judge—meets with the disagreeing parties to assist in reaching a settlement. In business, mediation is often the ideal solution for disputes involving employment, breach of contract cases, various transactional matters, workers’ compensation claims, ownership disputes, buyouts, and many other situations that are not overly complex. Read on to learn about the process and advantages of mediation.

 

How Mediation Works

It’s important to understand that a mediator does not make a binding decision like an arbitrator or judge. Instead, their role is to help guide both parties to a resolution they can both live with and amicably fulfill, with assistance from the necessary legal professionals if necessary. Many people equate mediation to simply “talking it out,” but the process is actually quite defined and deliberate.

Mediation usually begins with opening statements from the mediator and then from the disputants, or their attorneys, in a neutral, mutually agreed upon location. The disputants are given the opportunity to share their respective sides of the story with the mediator and recommend resolutions they might deem to be fair, often in person but also in the form of a mediation brief which is supplied to the mediator prior to a scheduled mediation date. Typically, all parties are in the same room while these statements take place, but the mediator may choose instead to keep the parties in separate rooms if there is a history of animosity between the parties.

After opening statements have been completed, the mediator usually facilitates a joint discussion to identify and address the key challenges. Then, each disputant is provided a private meeting with the mediator before another joint discussion. Ideally, a written agreement is then reached, and the parties can obtain closure upon executing the agreement. However, the process can repeat if needed, negotiations may continue, or the mediator may recommend other options for resolution, such as arbitration. If mediation and arbitration do not successfully settle the dispute, formal litigation may be required.

 

Deciding Whether Mediation is Right for Your Business

Mediation is most commonly used in civil cases, such as divorce or non-criminal disputes. However, there are also many business disputes that can often be settled with mediation, such as conflicts with customers, employees, vendors, competitors, or even among business partners. The key requirement for mediation in any dispute, of course, is that both disputants must be on stable enough terms and able to communicate rationally for the process to have any hope of reaching a resolution. In other words, if there have been repeated threats of violence, emotional outbursts, or other conduct suggesting the parties would be unable to mutually agree on anything, then mediation may not be productive.

Mediation is generally much faster and more cost-effective than hiring a lawyer to seek a settlement and/or proceed with litigation. Even if the mediation process goes through several rounds of joint negotiations, these meetings do not take near the time a lawyer would spend preparing a case for court hearings and a trial. The San Diego business attorneys at Gehres Law Group, P.C. often represent parties in mediation and also act as mediators in business-related matters. Our mediation attorneys will schedule a mediation date once each party makes a deposit reflecting their intention to proceed with mediation. If the mediation goes beyond the deposited number of hours, the additional time is billed to the parties in quarter hour increments.

In addition to time and cost savings, mediation can also help mend the relationship between disputants through direct and confidential conflict resolution. In business mediation, it’s not unheard of for disputants to completely resolve their conflict and continue working together since mediation brings the parties together, rather than encouraging them to fight, as is the case with the litigation process in general.

 

Preparing for Mediation

Once you have decided to enter mediation, you might find yourself anxious or nervous for the first meeting. You can diffuse the nerves—and the emotions—by taking a few simple steps to prepare:

  • Remind yourself that your reason for choosing mediation is to solve the conflict, and commit to providing a productive statement.
  • Organize any necessary documentation to support your statement.
  • Be direct and concise with what you are looking for in a resolution.
  • Make an honest attempt to understand the other party’s grievances.
  • Envision the other party’s potential claims or responses, and compose answers to them beforehand.
  • List your main talking points separately from the rest of your notes and materials.

 

Writing Mediation into Contracts

Adding a mediation clause to your contracts can help to prevent lawsuits against your business. At the very least, a mediation clause should outline how a mediator will be chosen and how the costs of mediation will be covered. The clearer the terms are, the less room there will be for future disputes regarding the process itself. Learn more about developing an effective mediation or arbitration clause in this article.

 

Choosing a Mediation Attorney

A mediator is typically trained in conflict resolution and negotiation, however, the level of skill and aptitude can vary greatly. The State of California does not have strict training requirements for mediators, allowing professionals from different fields to simply complete a recommended 40-hour program and begin seeking mediation opportunities. Because of the loose training requirements, many people in need of mediation seek an experienced mediation attorney with a good track record to ensure they are getting the best expertise and service.

With many years of experience as mediation attorneys in San Diego, Gehres Law Group, P.C. is able to provide affordable, legal-focused dispute resolution for businesses of all types and sizes, as well as representing parties in mediation. If you are considering mediation for a business dispute, call us at 858-964-2314 to speak with a qualified mediation attorney today.

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Wednesday, 7 March 2018

CALIFORNIA STATEMENT OF INFORMATION, WHEN TO FILE?

Statement of Information

Don’t miss your deadlines for filing a Statement of Information with the California Secretary of State. Below are the required due dates for filing (penalties assessed range from $50 to $250):

90 Day Statement of Information/Change of Corporate Information:

For Domestic Stock, Agricultural Cooperative, Foreign Corporations and Limited Liability Companies, a Statement of Information is due within 90 days after registration with the California Secretary of State, and when ANY information has changed since the last complete Statement of Information was filed. Clients who purchase our VIP Formation Package will have this filing included. For all others, you will need to request a Tailored Flat Fee Package, or ask us to file the 90 day Statement of Information or change of information at our current hourly or flat fee rate.

Annual Filings

Domestic Stock, Agricultural Cooperative Corporations and Foreign Corporations must file a complete Statement of Information every year. The due date depends on the date the corporation was formed.

Every Other Year Filings

Limited Liability Companies and Not-For-Profit Corporations must file a statement of information every other year.

  • Filing tip: If the corporation’s Articles of Incorporation were originally filed with the California Secretary of State in an even-numbered year, file statement of information every even-numbered year. If the corporation originally filed Articles of Incorporation with the California Secretary of State in an odd-numbered year, file every odd-numbered year.

Electronic Filing

The required Statement of Information for most corporations can be submitted electronically and is generally processed in one business day. Statements submitted on paper should be directed to the Secretary of State’s office in Sacramento, either by mail or dropped off in person. Statements for limited liability companies and common interest developments must be submitted on paper, by mail or in person (drop off), at this time.

Public Disclosure

Please note that the public can view information and download documents contained in the Secretary of State’s electronic records using digital search tools and information posted on the Secretary of State’s website. Also, please note that individuals and private companies use this public information to create third party access to these records.

For more information, see the California Secretary of State’s website at http://www.sos.ca.gov/business-programs/business-entities/statements/. Penalties for late filed statements of information are $250 against for profit companies and $50 assessed against not-for-profit companies. Contact the business attorneys at Gehres Law Group today to have us handle your statement of information filings.

 

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Tuesday, 23 January 2018

California Companies Brace for Change in 2018

The San Diego business litigation lawyers at Gehres Law Group, P.C. provide trusted and knowledgeable assistance in understanding your company’s obligations involving both state and federal regulations. The laws in California regularly evolve and businesses can face consequences, including civil liability, if they fail to follow the most current requirements. San Diego Business Litigation LawyerThere are, for example, numerous new regulations going into effect in 2018 and the Pasadena Star-News indicates companies are bracing for big changes.

New Laws Affecting California Companies in 2018

New laws going into effect in 2018 will profoundly impact the rights and obligations of employers and employees. Some of the new rules that will begin being enforced in 2018 or in subsequent years include the following:

  • The New Parent Leave Act: Under this newly passed legislation, small companies that have at least 20 employees will now be required to provide unpaid leave for parents to bond with a new child. The leave must be taken within a year of a child being born or adopted or within a year of a foster care child being placed. Employers are required only to provide the leave for the birth or placement of a child, not for any other medical needs of family members.
  • Assembly Bill 1008: This new regulation prohibits an employer with at least five employees from making inquiries into an applicant’s criminal history on a job application. Employers are also barred from from considering an applicant’s criminal history at any time until the employer has made a conditional offer of employment, except in limited circumstances such as when a background check for the profession is mandated under local, state, or federal laws.
  • Assembly Bill 168: Employers are not permitted by law to ask about a job applicant’s prior salary or job benefits, and employers are not allowed to use salary history as a factor in setting an applicant’s current pay. If a job applicant discloses salary information voluntarily, however, the employer is permitted to use that information. This law is aimed at combatting alleged wage discrimination whereby women are paid less than men for similar work.
  • The Immigrant Worker Protection Act: This law protects undocumented workers from immigration enforcement while they are working. Under the law, employers aren’t permitted to reverify whether current employees remain eligible to work.
  • SB 396: This law requires that any employer who provides a mandatory training course must include in the course a discussion of harassment or discrimination based on sexual orientation, gender expression or gender identity.
  • SB 295: This law establishes new requirements for sexual harassment prevention training and requires the training be conducted in a language spoken by the workers who are receiving the training.

This is just a small sample of the laws expected to go into effect in 2018. It is critical to speak with your San Diego business litigation lawyer for assistance complying with these changes in rules and regulations that could affect your rights or obligation as a business owner.

Contact a San Diego Business Litigation Lawyer

Gehres Law Group, P.C. represents small to medium-sized companies in California who need assistance ensuring labor laws are followed and who need assistance responding to violation claims. To find out more about how a San Diego business litigation lawyer at our firm can help you, give us a call at 858-964-2314 or contact us online today for your complimentary consultation.

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Thursday, 18 January 2018

Restrictions on Employers Limiting PAGA Claims With Arbitration Agreements

The employment litigation attorneys at Gehres Law Group, P.C. represent California owners and their businesses in defending their rights in court, through mediation or arbitration. Under certain circumstances, the Labor Code Private Attorneys General Act (PAGA) provides employees with another tool to assert claims against California employers, making it imperative that these businesses understand how PAGA works, and how they can thwart such claims. Employment Litigation Attorney

Julian v. Glenair Addresses Arbitration Clauses and PAGA Cases

The Labor Code Private Attorneys General Act (PAGA) provides authorization for aggrieved workers to file civil lawsuits. Civil lawsuits under PAGA allow the worker who files the suit to recover civil penalties both on his or her own behalf, or on behalf of other employees, and the state of California. Employees may recover a portion of these penalties for themselves if an employer has been found to have violated the labor code.

There are very specific requirements as to when a PAGA claim has ripened, allowing employees to assert such a claim against their employer or former employer. There are filing fees, rules for providing notice to opposing parties, and other conditions that must be met in order for a plaintiff seeking to recover civil penalties under PAGA to prevail.

However, employers have been increasingly limited in their ability to preclude employees from asserting PAGA claims through the use of arbitration agreements, as illustrated by a recent case, Julian v. Glenair.  There, the California Court of Appeals addressed the issue of arbitration agreements as a mechanism to limit the use of a judicial forum for PAGA claims.

The Julian v. Glenair case involved employees who brought claims against an employer for violations of the Labor Code, and for violations of the unfair competition act. The employees sought to make a PAGA claim for civil penalties in connection with the employer’s alleged violations. However, while the suit was pending, the employer attempted to short circuit the employees’ ability to pursue such claims, or at least to minimize the company’s exposure to liability and damages, by requiring the employees enter into a new employment agreement. More specifically, the new agreement included language indicating that continued employment with the company would constitute consent to mandatory arbitration of any employee claims. The proposed agreement stipulated that employees could no longer utilize the courts, but must submit to arbitration on a wide range of claims, including claims related to wages, rest breaks, meal periods, and all violations of federal, state, and local laws and regulations. The arbitration provision specified that the Federal Arbitration Act would govern the agreement and should, to the fullest extent permitted, preempt state laws.

The arbitration language also stressed that it was voluntary and employees could opt out. While most employees who had claims pending against the employer did opt out, two employees did not. Meanwhile, the employer continued trying to force the plaintiffs into arbitration through the pending court proceedings until the case made it to the Second Appellate District Court of Appeals for California.

While pre-dispute waivers of PAGA rights have previously been invalided in California, the Appellate court found there was no existing authority clearly determining the enforceability of a post-dispute waiver of the right to assert a PAGA claim in court. The Court utilized a two factors in determining the boundary between a permissible post-dispute waiver and an unenforceable one: a) the capacity of the employee to make a “knowing and voluntary” choice on whether to waive the right to bring a claim in a judicial forum given sufficient knowledge of the law, and b) the absence of public policy considerations.

The court reviewed past legal precedent finding that a person who acts in two legal capacities (e.g. in their individual capacity and on behalf of the state) in executing a pre-dispute agreement in one of those capacities (as an individual), does not effectively waive the rights that may exist in their other capacity (as an agent for the state). An arbitration agreement signed by an employee who has authority to commence a PAGA action which has not yet ripened does not, therefore, extend to PAGA actions because the employee isn’t the one authorized to bring the PAGA action – the state retains the control of the right to bring the underlying PAGA claim and the employee acts as an agent of the state. A pre-dispute arbitration agreement thus would not be effective in requiring the employee to arbitrate PAGA claims, even though it would typically be effective in requiring arbitration of individual claims.

The Court in Glenair further held that an individual employee may not waive their right to pursue a PAGA claim through the state courts even on a post-dispute basis if the employee was not represented by counsel, which would be necessary to reveal a “knowing and voluntarily” waiver of the employee’s rights. This analysis is required as to each employee, since the statute permits similar actions by employees against the same employer, and more than one employee can act as the state’s agent to assert PAGA claims for other employees (who may have waived their right to pursue their rights in court).

Therefore, in light of the holding in Glenair, even post-dispute arbitration agreement may be unenforceable with regard to PAGA claims if the affected employee has not retained counsel or if there is a clear public policy involved.

Getting Help from An Employment Litigation Attorney

If you or your business is being threatened with claims based on California Labor Code violations, including PAGA claims, contact the litigation lawyers at Gehres Law Group, P.C. for help. Give us a call at 858-964-2314 or contact us online to schedule a complimentary consultation with one of our knowledgeable employment litigation attorneys.

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