The Big Fish Always Get Away

The federal Communications Decency Act bans any lawsuits against websites and web service providers for publishing third-party content, including reviews, comments, thumbs-up / thumbs- down voting, and even for hosting lengthy, malicious blogs.  You can’t sue Yelp, Google, Angie’s List, RealSelf, HealthGrades, or any review website or website hosting service for libeling you by posting a bad review or hosting a blog that is critical of you. 

In California, the anti-SLAPP (strategic lawsuit against public participation) law also gives people and businesses sued for “discussing a matter of public interest” the right to recover their attorneys’ fees in some situations.  An example: this year, a California Court of Appeal decided the anti-SLAPP law required a dentist to pay $81,000 in attorneys’ fees to Yelp and a negative reviewer who accused the dentist of putting in a mercury filling.  The Court said this review was part of a discussion of “public interest” in the safety of mercury fillings. The dentist had already dismissed the lawsuit against Yelp, but this was of no help. Yelp was immune to suit for bad reviews under the Communications Decency Act, and the subject matter of the review entitled Yelp to recover all of its attorney’s fees under the anti-SLAPP law.   

Protected Opinion or Lawsuit-Worthy Falsehood?

The law does not permit you to sue someone for expressing an opinion that cannot be proved or disproved with facts.  If someone calls you a “creep” or “obnoxious” or says your “prices are too high,” this is opinion protected by the constitutional right to free speech, and you cannot sue for it.  On the other hand, you can sue if someone says, for example, that your restaurant is “filthy” and in fact you follow a careful, well-documented cleaning schedule and received an “A” grade for cleanliness in a recent unannounced state inspection.  A false statement of fact that is injurious to a business is not protected by the right to free speech.

Can You Find Out Who Wrote the Review?

Assuming the review contained a false statement of fact that injured your business, you face a final hurdle: finding out who actually wrote it.

Identifying an anonymous reviewer is complicated.  First, your attorneys must subpoena the review site, or their hosting company, to request the IP address of the viewer.  If the company has already deleted this information, your suit will effectively be over.

If you get the IP address, your attorneys must subpoena the internet service provider – the company that the reviewer used to go online – to request the name of the reviewer.  If the reviewer logged on using a public computer, such as one at a library, your suit will again be at a dead end. If the reviewer used a subscription ISP – an internet service provider such as Cox or Time Warner – the ISP will notify the subscriber of the subpoena, as required by federal law.

Whether you find out the reviewer’s identity or have to fight the ISP for it, the next courtroom battle is always the same in California: to go further, you must provide evidence of each element of your lawsuit – the statement, the evidence showing it was substantially false, and its harmful nature to your business. The court may then decide the review was constitutionally protected free speech, in which case, your lawsuit is over.  If the court allows your suit to proceed, you then face a long, costly, uphill court battle against the reviewer, who may not have any money to pay your lawsuit if you are finally successful.

When is it Worth Suing for a Bad Online Review?

The only situation where it is truly worthwhile to sue for a bad review is where someone has posted a very harmful series of factual reviews that are provably false and are likely to actually harm your business.  Courts are likely to be much more sympathetic if the reviewer turns out to be a competitor, an ex-employee, or someone else who set out to harm your business and did not care if the factual statements in their reviews were true or false. In this case, you can seek both a money award and a court order requiring the reviewer to request removal of the false reviews.  Although review websites are not required to remove false reviews, they are much more likely to be cooperative if you have a court order against the reviewer.

If you decide not to sue, you still have other options.  Among the best:  asking the review site to remove the review on whatever grounds that website allows, soliciting good opinions to “bury” bad ones, promptly responding to bad reviews in a gracious manner whenever a response is permitted, and offering fast solutions whenever the complaint is valid.  It can also help your business to maintain an informative, up-to-date website and a strong presence on social media websites, so that potential clients and customers have multiple ways they can learn all the good things about your business.

Call San Diego Law Firm for Help with All Business Concerns

If you have a business problem or dispute, including one that involves the internet, the experienced business lawyers at San Diego Law Firm have solutions that will save you time, money, and frustration.  In addition to our legal services, we can provide practical and sound management advice if your business is facing a crisis generated by events beyond your control.  Please call San Diego Law Firm at 619-794-0243 to make an appointment.  We look forward to helping you.

In line with consumers’ expectations, social networking website Facebook offers privacy settings that seem to allow you to make some of the information you post – including photos and comments – accessible only to people you choose.  But recent court decisions suggest that some or all of your “private” Facebook postings may lose their private nature once you become a party to a lawsuit.

In California, the right of privacy generally yields to another law, which permits all parties to a lawsuit to seek and obtain information, called “discovery,” from the other parties.  Discovery is all information that is relevant to the subject matter of the lawsuit, plus information that is reasonably calculated to lead to the discovery of admissible evidence. The purpose of discovery is to allow each party to evaluate the merits of all the contentions, and to prepare their own case for trial. 

There are only a few limited situations where the constitutional right of privacy partially outweighs the right to discovery.  Items like employment records, tax returns, personal financial records, medical records, and other highly confidential records cannot be discovered simply because they are generally relevant to the lawsuit, or likely to lead to the discovery of admissible evidence.  Instead, these confidential records can only be discovered if they are “directly relevant” to the lawsuit – likely to help prove or disprove a material fact in dispute.

The problem with trying to prevent other parties to a lawsuit from discovering your “private” Facebook postings is this:

1.  Some of your profile information – your name, photo, age range, locale, and gender – is always publicly available because Facebook makes it public.  The opposing party in a lawsuit will therefore know if you have a Facebook account.

2.  Any of your Facebook friends can put a photo of you or comment about you on their own page and add a link from it to your profile.  Although you can remove the link, you can’t remove the photo or comment from another person’s page.  Also, if you post a comment on someone else’s page, they can choose to make it publicly available.  This means you can’t entirely control what photos and comments about you are publicly available on Facebook.

3.  These photos and comments on other persons’ pages can often be uncovered by the other party (or parties) to your lawsuit by combining diligent searches of numerous Facebook accounts with investigative techniques that allow the other party to identify your friends, your neighbors, your work associates, and various public locations you visit.

4.  Information that is constitutionally protected as private and that can be discovered only if it is “directly relevant” to the lawsuit is typically specific, limited, highly personal material you have confided only to someone who has a legal duty to protect that information from public view – for example, your attorney, your religious advisor, your physician, or your employer.

5.  People who have become your “friends” on Facebook do not have that responsibility towards you, and the fact that you share information with them but not with the general public is probably not enough to prevent that information from being discovered in a lawsuit.

Recent cases from other states suggest that courts will likely be inclined to allow parties to a lawsuit to discover a variety of supposedly “private” information another party has shared with friends via Facebook.  

In one case, a New York court ordered a woman accident victim to give the defendant access to her private Facebook postings after the defendant found public Facebook photos showing the woman engaged in an active lifestyle that would not have been possible if she had actually suffered the injuries she claimed. The court said that as a party to a lawsuit, the woman could not “hide relevant information behind self-regulated privacy settings” on Facebook.   

In another case, a Connecticut court ordered a divorcing couple to share their Facebook usernames and passwords with each other, and ordered them not to delete information already posted, after one spouse claimed the other’s “private” postings would likely show the other spouse’s lack of fitness for custody over the children.

In a third case now pending, defendants in a New York inadequate-security lawsuit are seeking access to the shooting victim’s private MySpace and Facebook postings, after her lawsuit claims of great trauma and resulting fear of crowded spaces were contradicted by public photos of her at a concert, and her own public posts that she was having “so much fun doing everything.”

The bottom line:  if you have a Facebook or other social networking account, or your friends, neighbors, or work associates have one, a great deal of information about you is likely to come out in a lawsuit.  Even when you have fulfilled your legal obligation to tell the truth, social networking information may be used by the other side to support their version of events, which may be mistaken or even intentionally exaggerated.  You’ll need to be prepared for this possibility and to discuss it frankly with your trial lawyer.

The trial attorneys at San Diego Law Firm have years of experience in handling all types of disputes, and are very knowledgeable about social media such as Facebook, Twitter, LinkedIn, and other popular networking resources.  We are used to handling difficult, highly personal information in lawsuits ranging from accidents, to business and real estate disputes, to divorce, to probate, and to numerous other types of cases.  If you need an experienced trial attorney to handle your dispute, please call us at (619) 794-0243 to schedule a consultation.  We can help you.

United States copyright law protects original articles, books, maps, sheet music, drawings and paintings, plays, movies and recordings, computer programs, and many other types of creative work.  It gives the creator the exclusive right to copy, distribute and adapt the creative work for a number of years, and to license or permanently sell and transfer their rights to others.  There are some limited exceptions to a copyright owners’ control.  For example, a parody of a creative work, or a review that quotes from or reprints a very small part of the work, may be considered “fair use,” which does not require the permission of the copyright owner.  There is also no copyright for a mere idea or concept; the creative work must be in a fixed form that can be seen or heard by others.

A copyright exists from the moment you put your creative work into a fixed form.  However, if you want to bring a lawsuit against someone for using your work without permission, you will have to register the copyright with the United States Copyright Office.  If someone then uses your work without your permission, you file for a court order to permanently stop their use, plus compensation for lost profits, attorney’s fees, and more.

Applying for copyright registration is not difficult, but there are specific rules to be followed.  For example, an application to register a single song must be made on a different form than the form for a group of songs to be registered together.  For another example, website content must be copyrighted separately from any original coding, such as the HTML or programming that governs the display of the content.  There are also specific rules for registration of an automated database that is continuously updated.  For that reason, it is worthwhile to have an experienced attorney file your copyright application if your creative work has potential value. 

If you have produced a creative work that has potential value, the knowledgeable attorneys at San Diego Law Firm can help you protect it.  We can prepare and file the proper copyright application, send formal “cease and desist” letters to anyone using your creative work without your permission, and file suit for compensation if an unauthorized person has used your work for their profit rather than yours.  Please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.  We look forward to helping you.

Detailed terms in the fine print of a contract may determine whether you should accept, negotiate or reject it.  For example, many unemployed persons find temporary work during a tough economy.  In most cases, they must sign an independent contractor agreement with the person or company who hires them.  The contract may list what types of services the persons will provide, how long the job will last, and how much the pay will be.  But this temporary work contract may be full of “legalese,” and the employee may not completely understand all the terms.  This can be risky:  for example, the temporary employee may be agreeing to give up all legal rights to their creative output (such as graphic design or original computer coding), or to not accept work with competitors for a particular period of time.

The same is true with contracts between businesses.  For example, if the commercial landlord for the property where you operate your business gives you a new lease to sign, there may be plenty of problems hidden in the fine print.  The lease may automatically renew several months before the end date, keeping you from cancelling it unless you give notice many months ahead.  Or it may hold you responsible for paying for what seems to be normal property maintenance, such as repaving a parking lot.  Even worse, the fine print of the commercial lease may say that anything you attach to the building – from a sign to an air conditioner – belongs to the landlord at the end of your lease.

The business and real estate attorneys at San Diego Law Firm have years of experience in negotiating, preparing, and revising California contracts.  If you are unsure about whether to sign a business or real estate contract that someone else has prepared, we can review it and work to negotiate and then draft revised terms to make the entire contract more favorable to you.   Before signing a contract “as is,” particularly one whose terms are unclear, please call San Diego Law Firm today at (619) 794-0243 to arrange an appointment.  We look forward to helping you.

The monthly and periodic assessments that a HOA collects from its homeowners are the source of the HOA’s operating capital, and allow the HOA to provide services such as maintenance for common areas, security, and amenities enjoyed by the community as whole. When one homeowner fails to pay an assessment, the HOA has less capital available to pay for these items. The result:  to maintain the same level of services, maintenance, and amenities, the other homeowners in the association will end up paying more in monthly and/or periodic assessments.  This situation has become more common with the recession, as many homeowners have lost their jobs or been unable to refinance “sub-prime” adjustable rate mortgages, and have stopped paying their HOA assessments. 

Collection Options

There are several common methods for HOAs to collect delinquent assessments:

1.  Negotiations with the homeowner.  These may be successful if the delinquent assessment is a result of a job loss, and the homeowner has equity, some reasonable expectation of finding a job in the future, and a desire to stay in his or her home. 

2.  Filing a small claims court lawsuit against the homeowner personally for unpaid assessments of up to $10,000.  This is an inexpensive option, and may be a good choice if the homeowner still has funds, or may have funds in the reasonable future, and the mortgage far exceeds the value of the property.  The association can renew the small claims court judgment and seek collection from the homeowner / former homeowner any time in the 20 years after it obtains the judgment.  

3.  Filing a lien on the property for the unpaid assessments.  If the property is sold, the lienholders – who include the holders of any mortgages on the property – are paid from the sale proceeds, or at least have the opportunity to negotiate with the buyer for partial payment of their lien before they agree to the sale.

4.  Non-judicial foreclosure on a lien.  To begin a non-judicial foreclosure, the past-due assessments must be at least $1800 and more than 12 months delinquent.  There are many complications to this method, chiefly that any mortgage holders are likely to outbid the HOA simply by bidding the amounts of their loan.  (This does not wipe out the homeowner’s debt to the association, but it wipes out the immediate security for that debt.)

Consulting an Attorney

If you are a board member of an HOA with one or more delinquent assessments on the books, you should consult an attorney who is knowledgeable about the laws that govern California HOA’s and your options for collecting unpaid assessments.  Our attorneys at San Diego Law Firm can help you select the best collection method for your HOA and help you identify what steps are in your HOA’s best short-term and long-term interest.  Please call us at (619) 794-0243 for a consultation.

What is a Mechanic’s Lien?

A mechanic’s lien is a hold against a property that is recorded at the County Recorder’s Office by a contractor, subcontractor, or supplier who has not been paid for work performed.  Ultimately, it can result in a foreclosure action and even prevent the refinancing or sale of a property until the lien is satisfied.  Consequently, the complicated procedures, filing deadlines, and statutory notice requirements of a mechanic’s lien must be followed without mistakes for a lien to be effective. 

The “20-Day Lien Notice”

The California Civil Code details the exact procedures that must be followed to enforce a mechanic’s lien.  A strict requirement is the filing and service of the 20-Day Lien Notice with the County Recorder.   The Notice must include the proper names and addresses of the relevant parties.  A failure to name the correct project owner makes the notice ineffective.  However, it may be difficult for a subcontractor or supplier who needs to file a mechanic’s lien to determine who should be named on the 20-day Lien Notice, as the parties involved in a construction project can include not only the owner of the property, but also the general contractor, insurers, adjusters, sureties, and lenders. Because the rules and requirements are so technical, it is very helpful to have the assistance of an experienced attorney in filing a mechanic’s lien.

Enforcing a Mechanic’s Liens by a Lawsuit

In order to get the full remedy of a properly recorded mechanic’s lien, a lawsuit must be filed in the Superior Court of the County where the lien is recorded.  A party claiming lien rights one must be certain that every statement made can be substantiated.  Worse, if the party with the lien rights does NOT file a lawsuit, a property owner can petition the court to release the lien from the property! Should the owner of the property succeed, they may sue for attorneys’ fees in addition to actual money damages.

Other Options for Unpaid Contractors, Subcontractors, and Supplier

The mechanic’s lien is only one remedy for getting paid.  It is important to discuss all viable options with a seasoned real estate attorney when you are trying to obtain payment for work you have performed.  In some cases, there are legal alternatives to the complex and technical – but effective – mechanic’s lien.  If you are a contractor, subcontractor, or supplier who has not been paid, or who is working on a project that is going to be stopped and suspect you may not be paid,  talk to one of the expert real estate attorneys at San Diego Law Firm at (619) 794-0243.  We can help you.

Proving Causation in a California Mold Injury Claim

In mold claims in California a person must prove causation in two steps. First, a person must show that mold exposure can cause a physical illness.  Second, a person must show that the exposure did cause their particular illness.  A recent California case demonstrates just how important it is to make a causal link between illness and exposure when suing to recover money for personal injuries.

Consider the Case of Dee v. PCS Property Management

In the case of Dee v. PCS Property Management, Darcee Dee lived in an apartment for slightly over four months. She sued her landlord and the property management company for physical injuries from being exposed to toxic mold.  The experts in the case argued that Dee’s exposure to mold caused her symptoms, but did not present any evidence that she was exposed to the harmful toxin at her apartment. In the end, Dee’s claims were rejected by a jury and she got nothing. 

It is clear that bringing or defending a mold claim in California requires the testimony of experts that show or rebut a causal connection.  It you are in either situation you need a  legal team that understands the complexity of mold lawsuits in California. The attorneys at San Diego Law Firm can help with this unique type of claim. Please call us at (619) 794-0243.

An injunction is a court order that requires someone to either do or not do something.  For example, if your inheritance rights are in jeopardy because of something a personal representative is about to do, then you might be able to ask for an injunction to prevent the transaction. 

If you’re a business owner, then what would you do if another business was using your trademark (such as your business’s name or logo)?  If you need to sue, would it be enough to ask for only money?  Would a money judgment stop the competing business from using your trademark?  Maybe, maybe not.  That’s why you would probably ask for an injunction that specifically orders your competitor to stop using your trademark. 

Without an injunction, there are many situations where you’d be stuck having to sue someone over and over again because that person could continue violating your rights.

Do injunctions last forever?

Some types of injunctions that are temporary.  If there’s an emergency you may be able to get a temporary injunction that will last only until the court is able to make a final decision on the case. 

Even if you get a “permanent” injunction at the end of a trial, sometimes it can modified later.   An injunction can even come with an expiration date.

When can you get an injunction?

A request for an injunction isn’t taken lightly and not every case will qualify for one.  To get a temporary injunction while your lawsuit is pending, here are some of the main things you’ll generally need to prove: 

      1.  That monetary compensation wouldn’t be enough in your case

      2.  There’s a big enough threat that you’ll suffer permanent harm if the injunction isn’t given

      3.  You’ll very likely win the case

      4.  You’d suffer more harm if you don’t get the injunction, compared to any harm the defendant would suffer if are given the injunction

If you believe your rights are being violated and that monetary compensation isn’t enough in your case, we’ll evaluate your chances of getting an injunction in court.  This may be the best way to protect your rights, or prevent future lost profits.  Get the legal help you need from an experienced attorney by contacting San Diego Law Firm’s at (619) 794-0243.

Many unsafe products make it onto the market and into consumers’ homes, only to cause serious and even fatal injuries.  Sometimes manufacturers and sellers don’t do enough to ensure safety because they don’t want to cut into profits or delay sale of the product. 

Product recalls are an unavoidable part of our consumer-oriented world.  The widespread Toyota recalls over vehicle acceleration and other safety issues probably come to mind.  Mariko Sanchanta and Yoshio Takahashi of The Wall Street Journal report that over the next year, the financial hit to the carmaker because of these recalls could potentially total over $5 billion. 

Injuries have been caused by dangers and defects found in a wide range of products, including:

    ●  Household products and appliances

    ●  Electronics

    ●  Medical products

    ●  Prescription drugs

    ●  Foods

    ●  Toys

    ●  Cribs and other children’s products

    ●  Vehicles

    ●  Tires

What makes a product defective?

Your right to sue manufacturers and sellers for your injuries caused by a faulty product comes from “products liability” laws. 

These laws identify three basic types of defects:

1.  Manufacturing defect – The product is dangerous because of a mistake in how the product was made or assembled. 

2.  Design defect – Even if the product is put together properly, the product is dangerous because of the risks created by its design. 

3.  Marketing defect – You weren’t given proper warnings about the product’s risks or the product’s label was misleading.  The product could also be defective because you weren’t given proper instructions on how to safely use the product. 

If a manufacturer should know that a product could be used in a wrong way, then its design or warning has to address the possible misuse to reduce the chance you’ll be harmed.

What you can do if a defective product seriously injures you

The injuries caused by a defective product can be serious and even life changing, but the maker and seller of the unsafe product could potentially be held responsible.  In these situations, San Diego Law Firm can seek financial compensation for injury to yourself or a loved one.  Start your case as soon as possible, because the law limits how much time you have to start a lawsuit.  Find out how we can help by contacting San Diego Law Firm’s experienced and dedicated products liability lawyers at (619) 794-0243.

The federal and state governments then create laws to carry out their separate powers.  States can create laws that cover a broad range of subjects, but have to stay within the limits of state power.  The national government’s law making power is even more limited, because the Constitution outlines the specific areas that federal law can address. 

While there can be some overlap, the Constitution is clear that federal laws trump state law when there’s a conflict between the two.  Even federal laws can be struck down if they run counter to the U.S. Constitution. 

Creating Federal and California Laws

●  Elected law-makers

How these laws are created depends on the system.  Nationally, Congress creates federal laws that the President must usually approve.  As for the states, each state government has a legislature to pass its own laws.  Add to that “city ordinances” that create rules that apply only on a local level (such as the San Diego Municipal Code).

●  Propositions

Here in California, we’ve also had many laws passed directly by voters through propositions – with the latest proposition to generate a lot of news being Proposition 8 that banned gay marriage in California.  As mentioned earlier, laws can be challenged as unconstitutional.  Maura Dolan of The Los Angeles Times reports on the recent claims made by lawyers in federal court on whether California’s gay marriage ban violates the U.S. Constitution.  The current case focuses on our national constitution, since last year’s challenge based on our state’s constitution failed in California’s Supreme Court.

●  Judge-made laws

Another source of law comes directly from the courts.  Many of our legal rights have roots in the “common law.”  These are laws and rules created by judges.  An example is negligence law that holds a person responsible for injuring someone else.   These judge-made laws are sometimes “codified” – meaning that the legislature puts a judge-made rule on the books, and might even expand on it.  Many of our California “statutes” or “codes” (the laws passed by the legislature) have come about this way.  Yet there are times when lawmakers are less than pleased with the common law, and pass statutes to change a judge-made law.  Common law also varies from state to state, although the law in one state can sometimes influence judges in another state. 

Jurisdiction: Dividing Power Between the National and State Court Systems

As a result of the division between the national government and the states, the issue of “jurisdiction” comes up for courts.  In other words, since there are federal and state laws that apply to different cases, a federal court may not have the authority to decide your case, or vice-versa.  Generally, a federal court will only hear a case if the dispute relates to federal laws like bankruptcy or copyrights, if a state law allegedly violated a federal law, or if the people in the case are from different states and more than $75,000 is at stake. 

Just about any other kind of case will be heard in a state court, such as in one of California’s Superior Courts.  Even then, there can be issues over which state should hear the case.  Many times, both federal and state laws apply.  When this happens, the case could potentially go to either state or federal court.  There’s a lot more that goes into jurisdiction, and many battles have been waged over which court should hear the case. 

If you’re involved in a business or personal legal dispute, we’ll examine which court has jurisdiction over your case.  There is a lot to navigate in any lawsuit, but you can feel confident in having a skilled personal legal representative from San Diego Law Firm handle your case step by step.  Contact us at (619) 794-0243.