Tuesday, July 28, 2009

How do I remove my image that someone posted on the Internet without my permission?


Whether you can remove this image depends on the facts. Generally, one can photograph people in public places without consent with some exceptions, e.g. if the people have a reasonable expectation of privacy, such as restrooms, or if the photos are used for commercial or defamatory purposes without your consent. Assuming the latter purposes, you could employ a PCMA takedown notice to your internet service provider and/or the Internet Service Providers' Association (ISPA). For ISPA instructions in this regard, please visit the following link: http://www.ispa.org.za/code/how_to_request_takedown.shtml

IMPORTANT DISCLAIMER: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney. For more information, please visit: http://www.BealBusinessLaw.com

Thursday, July 23, 2009

May I contractually charge a 10% late charge per month?


The California Supreme Court has ruled that late charges are not subject to the usury laws, because they are not interest for the loan of money; however, the Court did not state what limits might apply. There is still uncertainty regarding the rules that apply to these charges.

Late charges of 1.5% per month on unpaid invoices appear to be proper and enforceable at this point. Late charges in the amount shown in your case (especially the "10% each month" part) might very well be subject to attack under Civil Code 1671, which states that a provision in a contract liquidating the damages for the breach of the contract (late charges) is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.
An exception to the above applies to real property rental agreements and retail purchases or rentals personal property or services, primarily for the party's personal, family, or household purposes, where the liquidated damages (late charges) must be the amount of damage actually sustained by a breach thereof or a negotiated presumed amount, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. No bright lines here.


IMPORTANT DISCLAIMER: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney. For more information, please visit: http://www.BealBusinessLaw.com

Wednesday, July 22, 2009

May contracts last indefinitely in California?


Assuming that the parties are either entities that may exist "into perpetuity" or may assign their interests and assuming that there is no termination date, no termination conditions, or termination conditions that never occur, technically such an agreement could exist into perpetuity. Under California law, a contract may, by its express terms, provide for a term of duration of indefinite length and without specific limitation, tied not to the calendar but to the conduct of the contracting parties.

IMPORTANT DISCLAIMER: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney. For more information, please visit: http://www.BealBusinessLaw.com

I want to cancel my LLC. May I just file a paper with the State?


1. An LLC may be dissolved and its affairs shall be wound up upon the happening of a vote of a majority in interest of the members.

2. You will need a list of all known creditors and claimants of the LLC. In the event of a dissolution of the LLC, the manager(s) may wind up the LLC's affairs and shall give written notice of the commencement of winding up by mail to all known creditors and claimants whose addresses appear on the records of the LLC.

3. After determining that all the known debts and liabilities of the LLC in the process of winding up, including, without limitation, debts and liabilities to members, if you are creditors of the LLC, have been paid or adequately provided for, the remaining assets shall be distributed among the members according to their respective rights and preferences. There may be no remaining assets to be distributed to the members.

4. A clearly marked "FINAL" Franchise Tax Return must be filed for the LLC.

5. The LLC will nevertheless continue to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it in order to collect and discharge obligations, disposing of and conveying its property, and collecting and dividing its assets. The LLC shall not continue business except so far as necessary for the winding up thereof.

6. If a dissolution is made by the vote of all members, and a statement to that effect is added to the certificate of cancellation of articles of organization, the separate prior filing of a certificate of dissolution is not required. The certificate of cancellation of articles of organization shall set forth all of the following:

a. The name of the LLC and the Secretary of State's file number.

b. That a final franchise tax return, or a final annual tax return has been or will be filed with the Franchise Tax board.

c. The Secretary of State shall notify the Franchise Tax Board of the filing.


IMPORTANT DISCLAIMER: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney. For more information, please visit: http://www.BealBusinessLaw.com

Do I Need to Organize or Register my Foreign Business in California?


A foreign corporation shall not "transact business" in California without having first obtained from the Secretary of State a certificate of qualification. This is a substantial administrative and taxation step.

According to California case law, activities that almost invariably lead to a finding of "transacting business" in California are the physical presence of corporate employees or agents, rather than independent contractors, in California, or the physical location of offices, particularly headquarters, in California. Other key factors are signing of contracts, particularly those to be performed within California.

If your circumstances fall into the grey area between the need to qualify or not qualify, it is important to plan this properly, as there are significant penalties, if you do not qualify, when the State of California thinks you should have.

IMPORTANT DISCLAIMER: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney. For more information, please visit: http://www.BealBusinessLaw.com