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Friday
Aug292014

Breaking Up is Hard to Do: Cohabitation Agreements Make it Easier

Cohabitation Agreements

by Lovette T. Mioni

 

According to a U.S. Department of Health and Human Services report, more and more couples are choosing to live together – either in a premarital cohabitation arrangement, or in lieu of marriage altogether.  

The report showed that 48 percent of women aged 15-44 interviewed between 2006 and 2010 lived with a partner without marrying. Only 34 percent of women in the same age group did so in 1995.

Many couples getting ready to officially tie the knot will consider a prenup – a smart choice for anyone with assets to protect, whether they be business interests, family heirlooms, or growing financial expectations. The growing number of couples who choose not to marry, or to delay marriage, should protect themselves too.

Cohabitation Agreements:
Why Do You Need One?

Unmarried couples living together for several years (or any amount of years) do not have a common law marriage in California and community property laws do not apply to unmarried couples.

However, one party could allege there was an agreement between the parties that Party “A” would provide for Party “B”, creating an interest in Party “A” assets that otherwise wouldn’t arise absent an agreement. Courts have held that express or implied contracts between unmarried cohabitors are enforceable. 

For example, in the case Marvin v. Marvin, the Court commented, “[A]dults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.”   

Individuals may unintentionally acquire/relinquish certain rights because of their relationships with their partners. A Cohabitation Agreement is a written contract between two people that are not married. It sets forth the mutual rights and obligations regarding  property, financial support, and estate planning.  We recommend implementing a Cohabitation Agreement to provide each party with financial expectations and general obligations for the relationship.

Consider drawing up a Cohabitation or Living Together Agreement to determine:

  1. Financial responsibilities.  

  2. Ownership for joint purchases, i.e. vehicles, furniture, home, etc.

  3. Residential financial obligations, i.e. rent or mortgage, utilities, insurance, etc.

It's not just the breakup that can be hard on cohabitants. The death of a partner can also create unforeseen hardships for the survivor. A cohabitation agreement may be used to determine if a surviving partner has the right or obligation to retain any property acquired after the couple started living together.

All in all, it's best to be prepared for any eventuality, whether a couple cohabitates until death do they part, or not. Each party in a cohabitation relationship should have his or her own legal counsel ensure their individual interests are determined in a Cohabitation Agreement.

Contact our Family Law Practice Group for more information. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Aug252014

For Whom the Calls Toll: Employers May Be Responsible for Cell Reimbursements

Wage and Hour DefenseClass Action Defense

by Sue M. Bendavid

818.907.3220

 

Here's another case that may result in further liability exposure for employers in California. The California Second Appellate District Court ordered the trial court to reconsider class certification for a group of 1,500 customer service managers who used personal cell phones for work related calls.

In Colin Cochran v. Schwan's Home Service, Inc., the plaintiff sued his employer for reimbursement for his personal cell phone service. Cochran argued that Schwan's violated Labor Code Section 2802 and engaged in unfair business practices. He sued for declaratory relief and statutory penalties under the Private Attorneys-General Act (PAGA) for himself and on behalf of a putative class of fellow employees.

The trial court refused to certify the class, noting that if the class members did not incur losses (e.g., because they had plans with unlimited minutes) there could be no liability on a class wide basis.  The trial court ruled that “statistics from a survey could not be used to prove liability, especially because there was no pattern or practice regarding the expenditures of the class members."

The argument against class certification was that the commonality requirement could not be met since the class members have different cell service carriers and many different phone plans provided by those carriers – thus determining expenditures for individual class members would not be feasible via the statistical sampling method proposed by Cochran.

Additionally, Cochran's girlfriend may have paid for the plaintiff's cell service which may render the class representative's claims for damages irrelevant.

Employee Class Action – It's All About the Sampling

The Court of Appeals disagreed, and cited Brinker Restaurant Corp v. Superior Court 2012 in the opinion: "if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages."

The Appellate opinion also referenced Duran v. U.S. Bank National Assn. 2014, and stated the trial court should consider the principals of Duran in considering whether to allow statistical sampling evidence in establishing either liability or damages, noting:

Duran noted that the use of statistical sampling to prove liability in overtime class actions is controversial, and explained that the use of it to prove damage is less so because "the law tolerates more uncertainty with respect to damages than to the existence of liability."

The court's opinion also stated that the trial court erred in assuming an employee does not suffer a loss under §2802 if a third party pays for the employee's cell service. Essentially, it's not the employer's business to delve into how employees handle their own, personal business.

In conclusion, the Court stated:

We hold that when employees must use their personal cell phones for work-related calls, Labor Code §2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.

Employer Takeaway

Be careful if your employees use their personal cell phones for work related calls.

If possible, do not REQUIRE your employees to have a cell phone. If personal mobile devices are necessary, consider reimbursing your employees for calls and for part of the costs of service, even if that employee has an unlimited calling plan.

 

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her via email: sbendavid@lewitthackman.com, or via phone: 818.907.3220, for more information. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Jul312014

Tax Implications: Selling Your Home

Gift Tax AttorneyEstate Tax Minimization

 

by Kira S. Masteller
818.907.3244

 

 

If you've lived at a property for at least two out of the five years before you sell your home, you can consider that property your primary residence or "main home", per the Internal Revenue Service.

The IRS will then figure in the selling price, amount realized, and the adjusted basis (net cost after depreciation deductions and capital expenditures) to determine your gains or losses on the sale.

Special circumstances may qualify you for a partial exclusion if you don't meet ownership/residence tests.

 

Tax Benefits for Selling Your Primary Residence

If you have gained, the profits from the home's sale are generally excluded from tax for up to $500K for married couples filing joint returns and $250K for individuals. There are tests to qualify for this exclusion: 

  1. Primary Residence Ownership: You had to have owned the home for at least two of the last five years.

  2. Use as a Primary Residence: You had to have lived at the property for a 24 month period in the five years prior to the date of sale.

  3. Prior Exclusions: You qualify so long as you did not use the $500K/$250K exclusion within the last 24 months. In other words, you can keep employing these exclusions for selling a series of primary residences every two years.

  4. Married Couples: At least one spouse must qualify for the exclusion, and both spouses must have used the property as a primary residence as outlined above. 

Special circumstances like divorce, change of health or certain unforeseen events may help you qualify for a partial exclusion, if you do not meet the 24 month ownership or residence tests.

You may also be able to extend the exclusions to a second home, if you convert it to a primary residence before selling, though the laws governing this practice have severely limited property owners from doing this since 2008. Still, you may be able to exclude 10 percent of the your gains when selling second or vacation homes.

 

Home Sales and Tax Obligations

The remainder of your profits (on sales after January 1, 2013) may be subject to the Net Investment Income Tax (NIIT), at a rate of 3.8 percent, dependent on factors like the seller's net investment income. The NIIT affects individuals as well as most trusts and estates.

First time home buyer credits may need to be repaid when you sell, depending on when you purchased the property.

Previously, you may have postponed tax obligations on home sales by using the proceeds to buy another primary residence – deferring what you owed the IRS under what was called rollover rules. The law changed in 1997, and rollover rules will no longer apply.

 

Other IRS Considerations

You must report any gains that exceed the exclusion amounts above, though we recommend you report all real property sales anyway. If you received Form 1099-S, report it.

Kira S. Masteller is a Trusts & Estate Planning Attorney at our firm. Contact her via email: kmasteller@lewitthackman.com, or by phone: 818.907.3244.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jul232014

What Happens in a Personal Injury Case During a Deposition? 

Injury Attorney Los AngelesPersonal Injury Attorney

 

by David B. Bobrosky

(818) 907-3254

 

In part three of this Injury Claims Process series, I blogged about What Happens When an Injury Lawsuit Is Filed. We covered quite a few topics in that one, including injury litigation depositions. This post will take a deeper look into what happens at a deposition.

Personal Injury Depositions: Follow the four basic rules given below.Giving a personal injury deposition can be a little intimidating for our clients. In fact, other than testifying at trial, it is usually the most stressful part of the case for the client. But it doesn’t have to be.

I often hear that clients are afraid because he or she knows the defense attorney is going to try and “trick them.” Yes, the attorney’s job is to weaken your case wherever possible. However, if you are honest and answer the questions based on your own knowledge, the power is on your side.

 

What is a Deposition?

A deposition is a question and answer session between you and the attorney(s) on the other side. It is the only chance to speak to you directly prior to trial.

Your attorney is there to defend you by objecting to improper questions and to help control the situation. A court reporter is present taking down everything that is being said in the room, so be very careful about what you say at all times.

 

Preparation for a Personal Injury Deposition

You should meet with your attorney prior to your deposition. Your attorney will go over ground rules for the deposition, discuss the general areas to be covered, review the facts of your case with you, and highlight any issues that may be a problem. Remember everything discussed with your attorney is privileged and cannot be disclosed to the attorney.

 

Basic Ground Rules for the Deposition

  • Oath – You will be given an oath by the court reporter which is the same oath you would be given in court. Therefore, even though you’re typically in a conference room, your testimony is being given under the penalty of perjury just as if you were in court.

  • Don’t Guess – If you do not know an answer to a question DO NOT GUESS. Guessing will only get you in trouble. If you do not understand a question, let the attorney know that you need it rephrased.

  • Don’t Ramble – Answer only the question you are asked. Do not add to it if you do not need to.   If you can answer the question “yes” or “no”, do so. If you need to explain an answer to benefit your case, do so. The deposition is a fact gathering session for the other attorney – it is not your day in court.

  • Take a Break – Depositions are not endurance tests. If you need to break to use the restroom, get something to eat, or just re-group, you can do so. Just let your attorney know.

 

What Will the Defendant's Attorney Ask in an Injury Deposition?

Personal injury depositions generally follow a certain pattern, which of course, can vary by attorney and case. Typically, the following areas are covered:

  • Personal/Educational/Employment Background – The attorney will gather basic personal information. For example, are you married?  Do you have children?  Who were you living with at the time of the accident?  This may lead to potential witnesses to determine what you were like before the accident, as well as after the accident. Educational and employment information is always asked, and is covered in much more detail if there is a loss of earnings or earnings capacity claim.

  • Facts of the accident – Whether it involves a trip and fall, a defective product, or an auto accident, you will be asked questions about how the accident occurred. Your attorney will prepare you on the important issues regarding the accident.

  • Injuries and Medical Care – You will be asked, in detail, what injuries you suffered and what you were feeling at different points in time. You will also be asked very detailed questions about your medical care and future prognosis. It is important to go over your medical records in preparation for your deposition. You do not need to know on the exact date you saw each doctor, but you need to generally know which doctors you saw, in what order, and what care you received from each. You will also be asked what activities you cannot do since the accident and how the injuries have affected your life in general.

A deposition does not have to be stressful, and it certainly shouldn’t harm your case. Be prepared, be honest, and be credible, and you will be fine.

David B. Bobrosky is an experienced Accident Attorney in our Personal Injury Practice Group. Contact him directly for more information: dbobrosky@lewitthackman.com; (818) 907-3254.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jul112014

The Road Ahead for California Transportation Industry Employers

Wage and Hour Defense Attorney Employment Defense Attorney

 

by Sue M. Bendavid & Hannah Sweiss

 

The 9th Circuit Rules FAA Authorization Act Does Not Preempt State Meal and Rest Break Laws

On July 9, 2014, in Dilts v. Penske Logistics, Inc. the Ninth Circuit Court of Appeals held that, for motor carrier employers, California’s meal and rest break laws are not preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”).      

Class Action: 349 delivery drivers and installers claim Defendants create an environment that discourages employees from taking breaks.Up until this ruling, motor carrier employers tried to argue they need not comply with California’s meal and rest break rules, as those rules had an impermissible negative impact on “prices, routes and services” and therefore, those laws were preempted by federal law under the FAAAA.

Defendants in Dilts argued compliance with California’s meal and rest break laws would force drivers to deviate from routes and would result in a cessation of delivery services throughout the day. This could cause longer delivery times and greater costs to employers. However, the Ninth Circuit was unpersuaded.  

 

The Ruling's Impact on California Employers     

So what does this mean for certain motor carriers in the transportation industry?

Generally, under California law an employer must provide a duty free meal break of 30 minutes for nonexempt employees who work more than five hours and a second 30 minute duty free meal break for those who work more than 10 hours. If a nonexempt employee’s total daily work time is at least 3.5 hours, employers must also provide a paid rest period of 10 minutes for every four hours or major fraction thereof.

Based on this decision, motor carrier employers may have to: 

  • Hire more drivers,

  • Stagger employee break times,

  • Reallocate resources to maintain a particular service level,

  • Allow drivers to make minor deviations from their routes, and

  • Make other changes to ensure compliance with California’s meal and rest break rules.

A failure to do so may result in substantial penalties and is expected to result in more class actions on this issue. 

Sue M. Bendavid and Hannah Sweiss are Wage and Hour Defense Attorneys at our Firm. Contact them directly: sbendavid@lewitthackman.com or 818.907.3220; hsweiss@lewitthackman.com or 818.907.3260, for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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