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Thursday
Oct132011

California Community Property Law | Marriage and Business

Encino Tarzana Divorce LawyerChild Custody and Support Attorney Los Angeles

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

We all love the romance of marriage. If you are thinking of taking the romantic plunge, you should consider community property law, especially if you live in California when you get married – community property law will apply to you. Ultimately, most of us hope that our marriage and business interests will last a lifetime.

With the proper planning and effort, you can keep both marriage and business running smoothly, until death do you part. Hopefully.

But the fact is, approximately 50 percent of first marriages will end in divorce. While it takes two people to get married, it only takes one person to get divorced in California. So it may be some comfort to know you can still save one institution if you can’t save the other. Here’s what you should know about California community property law:

 

1. Community Property Defined

 

Generally speaking, California community property law covers all property acquired during the marriage, unless a spouse inherits property or receives a gift.

Community property includes income, whether it comes in the form of stock instead of salary, company profit-sharing plans, vacation pay, deferred compensation packages, retirement plans, etc. It also includes profits from a spouse’s business whether the business is characterized as a sole proprietorship, a partnership or a closely-held corporation.

It also includes debt incurred after marriage, no matter which spouse acquires the bills.

Separate property usually includes any property owned by a spouse before marriage up to separation, or acquired by gift or inheritance.

 

2. Marital Property Re-Defined

 

Did you know you can redefine your community property? Through a process called Transmutation, you and your fiancé or spouse can define real estate acquisitions as community property or separate property, or convert pension benefits from separate property to community property, or vice versa.

Most people sign prenuptial and/or postnuptial agreements to transmute property. In short, you can redefine all of your property either before or during your marriage, if you and your spouse both agree to written transmutation terms.

 

3. Your Business Protected

 

Some people can mix marriage and business and keep both running smoothly. One way for you to do this is to enter into an agreement with your spouse or fiancé that outlines partnership interests for both of you.

For those of you not in business with a spouse, consider the value of prenuptial agreements. These premarital contracts can:

▪ Protect your business interests, and let you know what to expect in the event of a divorce.
▪ Protect your business partner’s interests, particularly if you are involved in a family owned business.
▪ Protect the growth of your business from becoming community property.
▪ Protect you, if you should contribute to the growth of your spouse’s business.

Because California community property law constantly changes, you’ll want to get expert advice from a family law attorney and/or an estate planning attorney.

At the very least, a prenuptial agreement is the first step in making sure you and your spouse understand your financial obligations to each other, your children and your separate or joint business interests.

 

Vanessa Soto Nellis is a Los Angeles divorce attorney in our Family Law Practice Group. If you have questions about community property law in California, reach her by calling 818.990.2120.

 

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.

 

 

Tuesday
Oct112011

Maximizing Your Annual Gift | Tax Free Gift Exemption

Trusts & Estate Planning Attorney

 

by Kira S. Masteller
818.907.3244

 

If your estate is valued over the Federal estate tax exemption ($5,000,000 in 2011 and 2012 and returning to $1,000,000 in 2013), you should consider making annual gifts to your family now so that those assets that would be received by the family anyway, will NOT be exposed to unnecessary estate taxes .

 

Your estate includes your:

▪ real estate,
▪ bank accounts,
▪ investments accounts,
▪ retirement assets,
life insurance,
▪ personal property, and
▪ all other assets

Annual Gifts that Don’t Keep on Giving (to the Government)

 

You are allowed to give $13,000 to as many individuals as you desire each year prior to December 31st without having to report the gift to the IRS, and a gift of $13,000 or under will not reduce your lifetime Gift Tax Exemption (presently $5,000,000; scheduled to return to $1,000,000 in 2013).

This means that you can give your son $13,000, his wife $13,000, and each of his three children $13,000 so that you have removed $65,000 that would be taxed at a rate of 35 percent (in 2011-2012; may return to 45 percent in 2013) if you left it in your estate and paid estate tax upon your death.

You can also directly pay tuition for students (your children, grandchildren and great- grandchildren), and health care expenses without affecting your lifetime Gift Tax Exemption. This is another way to help your family and reduce your exposure to Federal estate tax at the same time.

Of course when you have less assets in your estate, you may earn less income. This is something to consider prior to making gifts. Alternatively, if you are paying excessive income taxes, by reducing your income annually, you will pay less income tax annually.

If you have any questions regarding making annual gifts, you should contact your estate planning attorney or accountant to determine whether or not you should plan to make annual gifts to reduce the value of your estate.

Kira S. Masteller is a California Trust Attorney in our Trusts and Estate Planning Practice Group. For more information, call Ms. Masteller at 818.990.2120.

 

 
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
Oct062011

6 Motorcycle Safety Tips | Avoiding Motorcycle Accidents When it Rains

Personal InjuryMotorcycle Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

It’s that time of year again. As we saw yesterday, the start of winter’s rainy season is encroaching.

That means motorcycle safety becomes even more critical when you factor in decreased visibility, an increased distance needed for braking, and the added consideration that it doesn’t rain often enough for Californians to be really good at adjusting to wet road conditions. 

Many drivers still won’t factor in additional time to commute when it rains. So they’re still in a rush to get to work, the kids’ activities, schools and all of the other varied functions that regulate our lives. 

When it rains, traveling becomes riskier for those in cars and trucks, and critically dangerous for motorcycle riders. 

In light of all of this, it may be time to take a deep breath, and rehash basic motorcycle safety tips: 

1. Be Ready for Anything:  As every motorcycle rider learns when they get their first bike, anything can happen. When it rains, be prepared for additional hazards like automobile drivers who: 

▪  Forget to turn on their defrosters,

▪  Don’t maintain their wipers, or

▪  Change lanes to zip around slower moving traffic in frustration. 

Also be prepared for tsunami-like waves of water hitting you as other drivers plow through deep puddles in low-lying intersections. Helmets with face shields can help, but if you get hit with a LOT of water, the force can throw off your balance.

2. Assume Other Drivers Don’t See You (i.e., you are invisible): If automobile drivers have a hard time seeing you in dry weather, imagine how much harder it is when it rains, or when there’s fog. Also imagine how much harder it is for you to see other cars, particularly if they are grey, silver, white or don’t have lights on. 

3. Wear the Proper Gear:  Helmets are mandatory in California; sturdy boots, heavy jackets and gloves are just plain smart. 

4. Slow it down: This should be an obvious one, especially if it rains. But even if it’s not raining and you feel a need for speed, you should take your bike to a track or course where there will be less hazards. 

Manhole covers, metal road construction plates, painted surfaces – all of these things get a lot slipperier when it rains. 

5. Keep Your Head Moving: Don’t get tunnel vision when riding, especially when it rains. Always look to the sides, over your shoulders and check your mirrors. The more potential dangers you can spot ahead of time, the safer you’ll be. 

6. If You Don’t Feel Safe, Don’t Ride:  If the weather conditions cause you to be fearful or insecure, park the bike and find an alternate form of transportation until the skies clear. 

Personal Injury Motorcyle AccidentThe Insurance Institute for Highway Safety cites the federal government with these statistics: 

The number of motorcycle riders who died in 2007 was 37 times the number of car deaths, per mile traveled. In 2008, over 5,000 motorcycle accidents resulted in fatalities for the riders. That was the highest number of deaths recorded since the government began keeping track in 1975. 

Let’s not add to these figures. As a motorcycle rider, you know how dangerous driving can be. Just remember that in the rain, your risk increases. 

Andrew L. Shapiro is the Chair of the Personal Injury Practice Group at the Firm, and has ridden motorcycles for over 30 years. You can reach him by calling 818.990.2120.

 

 
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.

 

 

Tuesday
Oct042011

Software Licenses (and Apple’s Dominance) Are Reinforced by Ninth Circuit

Business LitigationIP Business Litigation Lawyer

Nicholas Kanter
818.907.3289

 

The Ninth Circuit recently reaffirmed a company’s ability to use a license agreement to significantly restrict customers’ use of its software. 

In Apple, Inc. v. Pystar Corporation (filed September 28, 2011), Apple sued Pystar Corp., a small computer company selling its own brand of “Open Computers” running Apple’s proprietary operating system. 

Apple claimed Pystar would purchase Apple’s software, copy it onto its Open Computer, and sell the computer to purchasers who wanted to run Apple’s software, but not pay Apple computer prices. Pystar would also include an unopened copy of Apple’s software with the computer to show that it purchased the software that was copied onto its computers. 

Apple claimed Pystar infringed its copyright by copying Apple’s software onto unauthorized, non-Apple, computers in violation of the Apple license agreement, which provided: 

“The License allows you to install, use and run one (1) copy of the Apple Software on a single-Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple labeled computer, or to enable others to do so.” 

Pystar argued Apple was misusing its copyright by requiring purchasers to run Apple’s software only on Apple-brand computers. 

The Ninth Circuit rejected Pystar’s copyright misuse argument finding a restrictive software license “represents a legitimate exercise of a copyright holder’s right to conditionally transfer works of authorship, and does not constitute copyright misuse.”  In doing so, the court affirmed the grant of summary judgment in Apple’s favor, as well as the permanent injunction that prohibited Pystar from selling Open Computers running Apple’s software. 

This ruling is significant in that it reinforces a copyright owner’s right to significantly limit a customer’s use of its software licenses. However, to show that the customer is a software licensee rather than an owner, the copyright owner should be able to demonstrate that its purported license: 

1. Specifies that the user is granted a license;

2. Significantly restricts the user’s ability to transfer the 
software; and

3. Imposes notable use restrictions. 

If the copyright owner is not able to satisfy this 3-part test, it may be determined that the user of the software owns the software, and therefore has the right to sell and resell the software without restriction. 

Therefore, copyright owners should not only consider licensing, rather than selling, their software, but also make sure that software licenses meet the above three-part test to avoid relinquishing the ability to control the use of its software. 

Nicholas Kanter is a Business Litigation Lawyer. His practice focuses on business, intellectual property and real estate matters. You can reach him by calling 818.990.2120.

 

 
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
Sep302011

Franchise Law Claims: Time Limits

Business Litigation Attorney EncinoFranchise Litigation Attorneyby David Gurnick
818.907.3285

Franchise laws in California and several other states seek to protect both franchisors and franchisees in their investment in a new franchise business. Franchisees are protected under these laws because franchisors must:   

▪   Register with the state each year,

▪    Present a disclosure document about the investment, and

▪    Allow a cooling-off period before the new franchisee signs any
   agreement or pays any money to the franchisor. 

These laws permit franchisees to bring a legal claim if the franchisor violates the law, such as by making a misrepresentation in offering or selling the franchise.   

For the franchisor,  the laws limit the time when franchisees can bring claims. 

A franchisee’s claim alleging violation of California’s Franchise Investment Law, is barred if not brought within the earliest to occur, of: 

▪   Four years from the act or transaction claimed to have violated the law, or

▪   One year after the franchisee discovers facts constituting the claimed violation. 

Moreover, under an old California law (from the 1800s), anyone, including a franchisee, who knows circumstances that should cause him or her to investigate, is deemed to know the facts the investigation would have revealed. This rule can make the one year time limit start and end quickly. 

Time limits differ in the various states that have franchise laws.  Here are some of them:

State

Time Limit for Franchise Law Claim

HawaiiFive years from claimed violation; or two years from discovery of facts constituting the claimed violation; but no later than seven years after the violation.
IllinoisThree years after act or transaction claimed to violate franchise law, or one year from being aware of circumstances indicating there may be a claim.
Indiana Three years after discovery of facts constituting claimed violation.
MarylandThree years after grant of the franchise.
MichiganFour years after act or transaction constituting the claimed violation.
MinnesotaThree years after action accrues.
New YorkThree years after act or transaction constituting the violation.
North DakotaFive years from date franchisee knew or reasonably should have known facts that are the basis for the claimed violation.
OregonThree years after sale of the franchise.
Rhode IslandFour years after act or transaction claimed to violate the state’s franchise law.
South DakotaOne year from claimed violation (for a rescission claim); Two years from discovery of facts constituting the claimed violation or three years from claimed violation (for a damages claim).
VirginiaFour years after claimed cause of action arose.
WashingtonTwo years from date of signing of franchise agreement.
WisconsinThree years after act or transaction constituting the claimed violation.

 

Some Effects of Franchise Law Time Limits

 

▪   Sometimes they encourage litigation.  They force franchisees to bring claims sooner, to reduce or avoid the risk of a claim being lost due to the statute of limitations. 

▪   They also give franchisors a strong tool to defend and defeat some claims, because the franchisee waited too long to sue. 

▪    These statutes also lead to some compromises and settlements, due to the complaining franchisee being uncertain if a statute of limitations may apply. 

▪   In some cases, by the time a franchisee becomes suspicious of a problem, dissatisfied enough to consult a franchise lawyer, and then certain enough to make a claim, more time has passed than the statute of limitations allows.   

▪   Sometimes, a franchisee knew the facts more than one year before bringing a claim. 

As a business owner, actual or potential franchisor or franchisee, you should keep in mind the statutes of limitations under state franchise laws.  

Franchisees should be aware to avoid losing or giving up a claim, by failing to bring it until after the time limit has passed.  Franchisors should be aware of statutes of limitations as a tool to bar or defeat an untimely claim, sometimes after only a relatively short time. 

David Gurnick is the author of Distribution Law of the United States and Franchise Depositions (Juris Publishing) and is Certified by the State Bar of California as a Specialist in Franchise and Distribution Law. Please reach him by calling 818.990.2120 or by e-mail: dgurnick@lewitthackman.com.

 

 
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.

 

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120