Palm Desert and Newport Beach Small Business Contract Attorney
A Guide To Doing Business in California By Small Business Contract Lawyer Sebastian Gibson
The Right Choice in Small Business Contract Attorneys in Palm Springs, Palm Desert, Newport Beach, the Coachella Valley and Orange County
As a small business owner in California, whether your business is in Newport Beach or somewhere further inland like Palm Desert, the contracts you use will determine whether or not you can be compensated when a customer breaches your contract.
Additionally, unless your contract provides for it, you won’t be entitled to your attorney fees even if you prevail in a court of law. On the other hand, if your contract does entitle you to your attorney’s fees and costs in the event you sue and win, think of the leverage you will have to get your case settled.
A business contract with a provision that entitles the winning party to recoup their attorney’s fees is a strong incentive to a party to abide by their contractual obligations and to pay for services and goods they receive. A business owner who is owed $15,000 for services they’ve provided, may be able to recover not only the $15,000 they’re owed, but an additional $50,000 if that was the amount of reasonable attorney’s fees they paid to enforce their contract.
A correctly drafted contract with provisions like these and more can make all of the difference to you and your business when you’re having a dispute or someone has committed fraud against your business.
California Small Business Contract Lawyer Sebastian Gibson
For over 35 years, attorney Sebastian Gibson has protected the rights of small business owners by drafting easy to understand contracts that protect small business owners from being taken advantage of by unscrupulous customers who would otherwise avoid paying for your services and goods if not tightly bound by their contracts.
Sebastian Gibson has been named a Top Lawyer for the past 8 years in a row by Palm Springs Life Magazine and has been given the distinction of being named a “Superb” lawyer (their highest rating) by Avvo, which rates attorneys all across the U.S.
With offices in Palm Desert and Newport Beach, the Law Firm of Sebastian Gibson has assisted business owners with their contracts and other legal needs throughout Southern California, from San Diego to Orange County and throughout the Coachella Valley.
Sebastian Gibson has law degrees from both the U.S. and Great Britain and has practiced extensively in both countries. Consequently, the Sebastian Gibson law firm represents clients around the world and has experience drafting and negotiating contracts ranging in length from only a few pages to much more extensive contracts ranging in size from 30 to 100 pages and more.
If you need your business contracts reviewed or redrafted to take advantage of provisions that can help you and your business operate in a manner that lessens your chance of being sued, call our offices today at (760) 776-1810. With our assistance and skill in drafting contracts, you can begin using contracts which can more capably protect you from claims by others that you’ve breached your obligations, and which give you the right to pursue other parties when they fail to live up to theirs.
Small Business Incorporation To Further Protect Your Business in California
At the Law Firm of Sebastian Gibson we can form a corporation in days, no matter what type of corporation or LLC you choose, prepare your minutes and provide you with a corporate book to hold your corporate documents at a very affordable price.
Business owners often need advice about what other steps they should take to protect themselves and their family from lawsuits. We can advise a business owner about how to avoid personal injury claims, employment related claims, privacy claims, trademark and copyright infringements, and attempts by litigants to pierce a business owner’s corporate veil to get to the business owner’s personal assets.
Drafting Corporate Documents To Avoid Ownership Disputes in California
If you’re already in an ownership dispute, it’s too late to avoid it. But if you’ve seen other companies, law firms, medical practices and even marriages fight over their assets, you know you need to be proactive to avoid having a similar ownership dispute when it comes to your business.
You can have an attorney from our offices prepare a shareholder agreement, a partnership agreement or an operating agreement, for instance, to help avoid long and costly litigation in the event of a dispute.
We can provide that in the event of a dispute rather than litigation being the first step in a dispute, that the parties go to mediation or arbitration thereby saving you a significant legal cost if the matter resolves prior to litigation.
At the Law Firm of Sebastian Gibson we’re strong believers in having disputes resolved by mediation. The right mediator can resolve nearly every type of dispute if the parties are reasonable and almost always in a day or two at the most. Think of the cost savings when the parties can go to a mediation which doesn’t require depositions or years of preparation for a trial and all of the attorney fees and costs involved for just the cost of an experienced mediator and your attorney’s fees for a day or two of mediation.
As a business owner with partners in the business, you also want to consider succession planning before you wind up facing the prospect of trying to run your business with the family member, wife or husband of a partner who has passed away and left their share of the business to an heir.
If your business is a corporation, corporate documents can provide a manner in which the value of a business owner’s shares are valued. Business owners with an interest in the corporation can be granted a right of first refusal to purchase a deceased owner’s interest before suddenly finding themselves at the mercy of a third party who suddenly becomes involved in their business.
Protecting Your Intellectual Property With Trademarks and Copyrights
Taking steps to protect your intellectual property by applying for trademarks and copyrights is one of the most important things you can do as a business owner. Your business name, your website, your logo, the slogans you may use, your trade secrets, and your advertising copy are some of your most valuable assets as a business owner.
For decades, business attorney Sebastian Gibson has specialized in trademark and copyright law, obtaining trademarks and copyrights for his clients and protecting them from parties that would seek to infringe them.
If your business name, your website, your advertising and your logo are important to you, or if you have an idea for a slogan you’d like to protect, call California Small Business Attorney Sebastian Gibson today.
Copyrights and trademarks are some of the most affordable ways by which you can protect your most valuable business assets. You’ve poured your sweat and tears into building up your business and your brand recognition. Don’t allow competitors to take your efforts and use them to promote their own goods and services by failing to protect yourself against their actions.
A copyright or trademark infringement suit can result in substantial damages being awarded to the prevailing party. Before you start using someone else’s trademark or think of using their copyrighted advertising, consult with the Law Firm of Business Attorney Sebastian Gibson today at (760) 776-1810. One of the largest seven figure settlements obtained by our office was in a case for copyright and trademark infringement of our client’s intellectual property.
Attorney Sebastian Gibson can advise you and provide you with options to not only provide you with a comprehensive search to ensure you don’t infringe the trademarks of others, but also to monitor others in the world and on the internet from diluting your trademark rights by using trademarks that would cause confusion in the minds of the public if allowed to coexist with yours.
Avoiding And Limiting The Risks of Lawsuits In Other States
The first way to avoid being subject to jurisdiction (and subsequently a lawsuit) in another state is to ensure that each and every contract you sign states that the governing law of the contract is the state in which you are located and to provide how and where any disputes shall be determined.
If you want any and all litigation of any disputes to be held in California, your contracts should provide not only that the law of the State of California applies to any disputes involving the contract, but also that any litigation shall be brought in the State of California, to avoid a New York court for instance hearing the lawsuit and attempting to apply California law.
A business, however, simply by doing business in another state can subject itself to the jurisdiction of that state by having sufficient or “minimum contacts” with that state. If your website takes orders from customers in another state, that alone may constitute sufficient “minimum contacts” to subject your business to jurisdiction in that state, thereby allowing you to be sued there and forcing you to defend your business in that state.
If you’re concerned about your business being subjected to jurisdiction and lawsuits in other states, call the Law Firm of Sebastian Gibson in Palm Desert or Newport Beach today for help to protect your business from litigation in far flung places that can prove costly to your business.
Avoid Breaches of Fiduciary Duty in California
A business owner who is in partnership with others or who has shares in a corporation along with other shareholders owes a fiduciary duty to the business and to the others with whom he shares a business interest.
The business owner who takes advantage of opportunities for himself or herself rather than presenting the opportunity to the other business owners he or she is in business with, may well be breaching his or her fiduciary duty to the other owners with interests in the business.
When a partner, director or other person with an interest in a business breaches their fiduciary duty to the other partners, directors and parties with an interest in a business, a lawsuit for damages can be filed for not only the damages caused by the breach of fiduciary duty, but even for punitive damages in an appropriate case.
Many people assume you must have a contract to have a cause of action for breach of fiduciary duty, but it is the breach of a duty of loyalty which is implied by law that gives rise to this type of action.
If you feel another business partner, director or person with whom you are in business together is breaching their fiduciary duty to you and to other business owners, call Palm Desert and Newport Beach Business Attorney Sebastian Gibson today at (760) 776-1810.
Documenting Your Business Decisions, And Noting Your Discussions With Clients
What can make or break a case in litigation is how well you document your discussions with clients and your business decisions.
A wise business owner, makes notes of every business discussion with clients and potential clients. Letters sent by certified mail, with a return receipt should be used for important agreements made with other parties and whenever you have that gut feeling you either can’t trust someone completely, or you want to ensure the person you’re dealing with understood the terms you and they agreed upon.
While it’s preferable to have a written document signed by all of the parties when an agreement is made, that’s not always feasible in a fast moving business.
However, invoices should have terms that apply to a transaction contained in the invoice. Emails can be sent to confirm terms agreed upon by the parties. By providing the party with who you’re dealing, with the opportunity to write back and say, no, that’s not what they agreed to, your confirmation goes a long way toward proving what they did agree to in the event they do not dispute what you’ve said in your letter or email.
Texts you send are not as easily preserved as emails. Emails are good if they aren’t lost or deleted, but emails can be hacked and are not as good as letters sent by certified mail with a return receipt or an overnight mail or priority mail envelope that provides you with proof the other party received your letter. A fax that has been signed and approved with the other party’s signature is great as far as documenting your discussions and agreements and they’re easy to send. And best of all is a signed agreement with all of the terms of your agreement laid out.
Business Contracts in California
Under California law, contracts can be either express or implied. If express, they will be expressed in words. If implied, they will be shown by the conduct of the parties.
A contract that is implied can be implied in fact (for instance, as a result of the previous dealings between the parties) or implied in law to prevent unjust enrichment of a party by the other when one party has received a benefit and it would be inequitable for that party to retain their benefit without compensating the other party.
Contracts in California can also be in writing or made orally. However, for an oral contract to be enforceable, all of the important terms of the contract must have been agreed upon.
Breach of Contract in California
In determining whether there has been a breach of the contract under California contract law, or in other words, whether one of the parties broke their agreement, it is required to determine if one of the parties performed their promises under the contract agreement.
For one party to obtain damages from the other, the performing party must have performed his or her obligations under the contract, or there must have been what the law allows as a valid excuse to his or her performance. The performing party also may allege that the other party waived the performing party’s performance. However, a party claiming that his or her performance was excused or waived has a much more difficult burden of proof, in most cases, to be successful and obtain damages
The crux of a breach of contract claim is the other party’s breach. The breach may be a failure to pay money, or the failure to perform some service, deliver goods or take some other action.
Since the object of a claim for breach of contract is the damages suffered by a party, the person claiming he or she was wronged, must have also suffered some financial damages.
Business Litigation To Prompt Settlement of A Business Contract Dispute
There’s nothing that can prompt settlement of a business dispute more than serving the other party with a lawsuit that’s been filed in a Superior Court.
While litigation can be expensive, starting with the court’s filing fee that’s required at the start of a lawsuit, and a process server’s fee, if you’re suing someone for breach of a contract and your contract provides that the prevailing party is entitled to their attorney’s fees, in many cases litigation can be a no-brainer.
In many instances, the lawyer for a litigant who files suit against a breaching party receives a phone call within days from the defendant who is asking what it will take to resolve the lawsuit.
If the defendant ignores the lawsuit, a default can be filed and you can get a judgement that can be enforced against the other party. You can place a lien on real property, attach bank accounts and even garnish wages.
If a party is concerned the defendant in the potential lawsuit has no assets and would be likely to file bankruptcy if you sue them, litigation probably isn’t a good option. Barring that situation, it is an option that should be considered and which can lead to a quick settlement.
Not all litigation results in a drawn out lawsuit and an expensive trial. Many parties to lawsuits will agree to some form of alternative dispute resolution such as a mediation which can quickly resolve the case if the parties are willing to resolve their differences and come to a settlement.
If the other party is unable to pay all of the damages upon settlement, a settlement agreement can be drawn up and the court can be requested to maintain jurisdiction over the matter until the settlement has been paid in full.
A settlement agreement can also be secured by a stipulation for entry of judgment which can then be filed with the court in the event the other party breaches their obligations under the agreement.
Breach of Contract And Remedies for Breach of Contract in California
A party to a contract that has been breached by the other party has a number of options they can pursue in litigation following the breach.
The non-breaching party can sue for their consequential damages that were reasonably foreseeable. They can sue for their incidental damages, damages that are an incidentally suffered as a result of the other party’s breach.
A non-breaching party may instead, in certain cases such as when damages would be an inadequate remedy, seek specific performance of the contract in order to require the breaching party to live up to their obligations under the contract.
Or, a non-breaching party may in some cases, seek a rescission of the contract so that the contract, in effect, is wiped out and the parties (especially the party seeking its rescission) become free to no longer comply with its terms and obligations. A court will rescind a contract though only in certain well-defined instances such as a mutual mistake of fact or law, a failure of consideration, fraud, duress, or undue influence.
When all the parties want to rescind a contract, they can also do so in writing. However, when only one party wants to rescind a contract, litigation will often be necessary unless they can reach an agreement with the other parties as to some form of compensation or other means of resolving their dispute.
Damages in Lawsuits for Breach of Contract and for Fraud in California
The general rule is that the injured party is entitled to the benefits he or she would have received if the contract had been performed. This is generally the amount that would compensate the aggrieved party for all the detriment he or she suffered as a result of the breach.
However, an injured party may obtain damages for lost profits, for his or her expenditures, for interest, and if the contract provided for them, even for attorneys’ fees and costs and again, if the contract provides for a specific amount of damages, for these “liquidated” damages.
While a lawsuit for breach of contract is limited to damages for which the parties knew or could reasonably have foreseen, the measure of damages for fraud are those damages which will compensate a party for all of the detriment proximately caused by the fraud, whether they could have been anticipated or not.
Each case rests on its own merits and there are different ways to plead and prove a person’s damages. Some remedies under the law are exclusive while in other cases, a party must choose which damages he or she would prefer to obtain, for example specific performance of the contract. On the other hand, a party, may have the option of rescinding the contract when it has been breached by the other party, and seek restitution of the price he or she paid, in other words, his or her consideration.
Additionally, exemplary or punitive damages for the sake of example and by way of punishing the defendant can be sought where it is proven that the defendant has been guilty of oppression, fraud or malice.
Punitive damages can far exceed a party’s actual damages, and fraud damages even without punitive damages added to them, can exceed contractual damages as they include damages suffered by a plaintiff, whether they were foreseeable or not.
California Small Business Contract Attorney Sebastian Gibson
At the Law Firm of Sebastian Gibson in Palm Desert and Newport Beach, we can help you limit your exposure to litigation while protecting your assets through means such as incorporation, your governing documents, reviewing and preparing well-drafted contracts and protecting your intellectual property from infringement.
We can also guide you in the manner in which you conduct your business in order to avoid unnecessary litigation costs that other business owners incur when they fail to follow well established protocols in the manner in which they deal with employees and with their customers.
Whether you’re starting a new business or have an established business that needs a legal overhaul of your contracts and operating procedures to make it less vulnerable to litigation, contact the Law Firm of Sebastian Gibson today in Palm Desert or Newport Beach by email or by calling our main office at (760) 776-1810. We look forward to helping you in every way we can.