Category Civil Litigation

Piercing corporate well, means when someone forms a form of corporation, does some activities under the corporation thinking he is NOT Personally Liable. But then the court decides he is.

The chances that a court can do the piercing depends on the state laws and the facts of the situation. Usually courts DO NOT LIKE to do it, but they may give an exception if a “serious misconduct” such as “undercapitalization” or “intermingling of assets” has been done.

This “serious misconduct” generally does not include debt to the “creditors”, but if the corporation is created to falsely burry the liability, creditors too, may have chances to pierce the veil.
In California the courts use “Alter Ego Doctrine” among other factors (fairness to creditors, corporation, members) to decide whether to go after a corporation.

For example they pay attention to the wrong doings including but not limited to the following:

Under-Capitalization, Comingling’s, Paying Personal debts ( Intermingling), diversions of assets to other corporation, formation of corporation with intention to commit fraud, failure to obtain authority to issue stock, failure to follow corporate formalities, having same officers for two corporations, entering contracts for personal benefit of the owner, concealment or misrepresentation of the management, duties, forming contracts to avoid performance liability and use corporation as a shield, use the corporation as the front for illegal activities and similar activities with the intend to mask or deter the liability.

Because in general and based on basic assumptions, corporations are formed to be protections for personal liability and to encourage trade, business and fair dealings, the order of piercing the veil is a devastating news for the owners and shareholders. Therefore it is very important that you contact an attorney before you start a corporation and engage activities or after liabilities are in the horizon or are set froth in the form of a lawsuit.

This is a legal blog. It is not intended to be used as legal advice. This blog does not create Attorney-Client Relationship. For further information please contact the law offices of attorney Ramona Kennedy.

Ramona Kennedy (Attorney) received her Jurisprudence Doctorate in America and is a licensed attorney in California (USA). Ramona Kennedy is a member of American Immigration Lawyers Association (AILA) & Orange County Trial Lawyers’ Association. Ramona Kennedy is fluent in English and Farsi (Persian).
Attorney Ramona Kennedy is admitted to represent Clients in the following Courts:
• The United States Supreme Court
• Federal Court of US District Court Central California
• Federal Court of US District Court Southern California
• All US Immigration Courts, California Supreme Court
• All California State Courts.

Email: Kennedycounsel@gmail.com
Phones: +19496770063 & +13106230080
Telegram & WhatsApp: 1949677006

Website: www.bestlawyerusa.com
www.topsuperlawyer.com
Immigration Law Blog in English:
www.kennedylawblog.wordpress.com
Immigration Law Blog in Farsi:
www.kennedylawblog1.wordpress.com
Business Law Blog in English:
www.kennedylawblog2.wordpress.com

Office Locations: Los Angeles, Irvine, Newport Beach

Los Angeles (Westwood) Location
-Oppenheimer tower
10880 Wilshire Blvd, Suite 1101 Los Angeles CA 90024
Phone: 13106230080

Orange County Locations:

Irvine:
-7700 Irvine Center Dr. Suite 800, Irvine, CA 92618

Newport Beach:
-5000 Birch St, Suite 3000 Newport Beach CA 92660
Phone: 19496770063

A disclaimer is a Clause or Groups of Clauses which allow the party inserting them to be partially immune from certain lawsuits.

A Clause may intend to waive or minimize third party liabilities.

For example when a consumer, or a construction builder or an owner relies on a third party report of an “Environmental Site Assessments” during the pre-design stages of a construction project; the potential lawsuits of Negligence or Negligent Misrepresentation maybe prevented by correct language in a contract.

The Lawsuits may come from Clients or anyone who relied on the report , for instance the builder who placed a bit on the project without knowing the costs of environmental surprising problems.

The lawsuits may also come from lenders who lent money based on the value of the property where the eventual stages of the projects showed results contrary to the geotechnical reports.

Although a licensed professional maybe liable to the reliance of parties who might not be in contract with them, the professionals may choose to protect themselves by placing the proper language within their contracts with the parties who employ them for their expertise.

The language basically may request the parties to b refrained to reuse the report for any purpose other than intended and/or not to use the report without prior written consent.

Or that the report is prepared for the exclusive use of the party ordering the report.

Another disclaimer clause may cover the timing through which the report is valid. The intervention of new circumstances which may cause an effect contract to the written reports are not within the scope or control of the professional who used the onsite facts to gather the report.

And last but not least the professional licensee might use the explicit language of hold harmless clause to be indemnified from and hold harmless against any and all claims, damages, expenses, losses, attorney fees that arise out of such report.

To be upheld in court of law, the laws of a contract can not be against the applicable federal or local laws and may not cause or advance an illegal purpose.

Therefore if a consumer has given protection against certain unfair practices of a licensee, no bulletproof disclaimer may rescue such practice from paying for damages in a court of law.

This is an legal blog. It is not intended to be used as legal advice. This blog does not create Attorney-Client Relationship. For further information please contact the law offices of attorney Ramona Kennedy.

Ramona Kennedy (Attorney) received her Jurisprudence Doctorate in America and is a licensed attorney in state of California (USA). Ramona Kennedy is a member of Orange County Trial Lawyer’s Association. Ramona Kennedy is fluent in English and Farsi (Persian).

#bestlawyerusa
Email: Kennedycounsel@gmail.com
Phones: +19496770063 & +13106230080
Telegram & WhatsApp: 1949677006

Website: www.bestlawyerusa.com
www.topsuperlawyer.com

Immigration Law Blog in English:
www.kennedylawblog.wordpress.com

Immigration Law Blog in Farsi:
www.kennedylawblog1.wordpress.com

Business Law Blog in English:
www.kennedylawblog2.wordpress.com

Telegram Channel in Farsi:
Office Locations:

Los Angeles (Westwood) Location

-Oppenheimer tower
10880 Wilshire Blvd, Suite 1101 Los Angeles CA 90024
Phone: 13106230080

Orange County Locations:

Irvine:
-7700 Irvine Center Dr. Suite 800, Irvine, CA 92618

Newport Beach:
-5000 Birch St, Suite 3000 Newport Beach CA 92660
Phone: 19496770063

Choice of law is governing law. Governing law is the law of the jurisdiction that would be used to interpret the agreement even if the parties are living in a different state or have incorporated their companies in different states.

Although there are more commonalities than not, some states laws differ because they are in favor of rules that might give more protections to their state corporations or state residents.

For the most part the state favorability in various subject matter of disputes is predictable. And that is why the parties to a contract may request that the interpretation of agreements or breach of those agreements be based on certain state laws.

But the chosen governing laws are not always where the disputes can be adjudicated. A new concept of “Judicial Jurisdiction” overrules the agreed governing laws.

For example if the subject matter of a contract is a service rendered to a California resident in California, even though the corporation rendering the service has been incorporated in Delaware; California Courts generally have jurisdictions over that subject matter.

States want to protect their residents. For example California insists on protection of its residence based on consumer protection laws when a problem occurs or an injury happens to its residents.

Therefore California courts try disputes on contracts where a California consumer is receiving a service or has received goods.

The concept of governing law and judicial disputes are two different legal matters: Jurisdiction refers to the location in which a dispute can be resolved or tried. But governing law are used to interpret the contract or decide the dispute.

In practice, its more important to have a favorable suitable jurisdiction than determining what state laws govern.

Deciding what provisions to put in your contract or how to have legal written manifestation of your mutually agreed in the contract, also to know how to implement remedies for potential damages are all very important legal decisions that directly affect your profitability and success in business transactions.

Bear in mind, the language of agreements must be drafted and chosen carefully.

The days of undocumented handshakes and imprudent trades as customary business practices while eliminating legal consultation have long been gone. Consult with a knowledgeable lawyer to provide the legal protection you deserve to have.

This is a business law blog. It is not intended to be used as legal advice. It does not create attorney-client relationship. For further information please contact the law offices of attorney Ramona Kennedy.

Ramona Kennedy (Attorney) received her Jurisprudence Doctorate in California, USA and is a licensed attorney in California (USA).

Ramona Kennedy is a member of US Supreme Court Bar, California State Bar, Los Angeles Bar Association and California Orange County Trial Lawyer Association.

Attorney Ramona Kennedy is licensed to practice in The United States Supreme Court, Federal Court of US District Court Central California and Federal Court of US District Court
Southern California, California Supreme Court & all California State Courts & All US Immigration Courts.

Email: Kennedycounsel@gmail.com
Phones: 13106230080 & 19496770063
Telegram & WhatsApp: 1949677006

Office Locations:
Los Angeles (Westwood) Location
-Oppenheimer tower
10880 Wilshire Blvd, Suite 1101 Los Angeles CA 90024
Phone: 13106230080
Orange County Locations:
Irvine:
-7700 Irvine Center Dr. Suite 800, Irvine, CA 92618
Newport Beach:
-5000 Birch St, Suite 3000 Newport Beach CA 92660
Phone: 19496770063

Commercial litigations or business disputes go back to the reference of “what was agreed”, “what went wrong?”, “who did the wrong?” and “how much damage did this wrong cost?”

And of course the frontier of all these questions is “what was agreed”, and that is the very meaning of “contract” and that is why a “contract” must be well-thought and well-written with the help of a knowledgeable and caring lawyer.

When most people think of contracts, they often forget that a contract may be breached under California contract laws when one party unconditionally refuses to perform the promised task. In court, this type of refusal is referred to as a repudiation of the contract.

When one party indicates repudiation—through words, actions, or both—the injured party may seek to claim a breach of contract. In these types of breaches, injured parties will claim a failure to perform under contract and seek various remedies for compensation.

Anticipatory breaches are very different from material breaches of contract. Anticipatory breaches are more pre-emptive and refers to an action that has not taken place. On the other hand, material breaches often refer to the contract itself. The term “material” refers to the fact that the contract itself or an important detailed is ultimately flawed or has been breached.

Types of Repudiation

Naturally, there simply too many unique scenarios to be encompassed in one category of repudiation. As such, the California courts often recognize three main types of repudiation: express, impossibility, and transfers.

Express repudiation is exemplified when a party makes a clear, unconditional refusal to maintain or honor the contract. Put simply, one party of the contract will essentially convey that they are not going to continue with the deal. More importantly, repudiation that falls under this category must be abundantly clear, straightforward and directed at the intended parties.

Impossibility is another type or repudiation recognized by the California contract courts. Impossibility refers to the fundamental capability for one or more parties to honor the original contract. A clear example is when a business owner takes a loan from the bank. If the business owner makes voluntary, reckless business decisions that incurs enormous debt with no profit, the business owner has repudiated the original contract to repay the bank. The sheer impossibility of repaying the debt—as a result of the business decisions—is why the voluntary acts is considered repudiation.

The third type of repudiation is when the property of the deal has been transferred to another. These breaches can be illustrated with a real estate deal. For instance, if a seller has already made a contract to sell the house to a specific buyer, then goes on to sell it to another person (i.e. family member), then the contract has been repudiated in the eyes of the court.

Exceptions

As always, there are a few exceptions to the standards of repudiation. The Uniform Commercial Code (UCC) is a code used to handle anticipatory breaches. More specifically, the code states that parties have the right to demand “adequate assurance of performance” when there is reason to believe that the other party will not fulfill the contract’s obligations.

During the period where proof of assurance is being gathered—in other words, not yet provided—the party that demanded the assurance can suspend their performance. If the assurance is not provided after 30 days of the initial request, the contract is official repudiated.

Breaches in contract are often extremely frustrating obstacles that pose many problems for businesses. As business owners or individuals involved in contracts, it is vitally important to understand the specifics of the contract. Additionally, it is responsible to make several plans or procedures to take if a contract is ever breached.

For individuals about to enter a contract or individuals dealing with contract disputes, it is highly advised that they seek an experienced legal counsel. Finding the right legal counsel will provide you with the crucial guidance when dealing with California contract laws.

This is a legal blog. It is not intended to be used as legal advice.

For further information please contact the law offices of attorney Ramona Kennedy.

Ramona Kennedy (Attorney) received her Jurisprudence Doctorate in America and is a licensed attorney in California (USA). Ramona Kennedy is a member of American Immigration Lawyers Association (AILA). Ramona Kennedy is fluent in English and Farsi (reading & writing) & speaks Azeri Turkish.

Email: Kennedycounsel@gmail.com
Phones: 13106230080 & 19496770063
Imo: 13106230080 & 19496770063
Telegram & WhatsApp: 1949677006
Office Locations:
Los Angeles (Westwood) Location
-Oppenheimer tower
10880 Wilshire Blvd, Suite 1101 Los Angeles CA 90024
Phone: 13106230080
Orange County Locations:
Irvine:
-7700 Irvine Center Dr. Suite 800, Irvine, CA 92618
Newport Beach:
-5000 Birch St, Suite 3000 Newport Beach CA 92660
Phone: 19496770063