New Office Locations

I have started my own firm and have two locations for client convenience: Orange County and Inland Empire. Please see my website for addresses: www.voneschlaw.com. I provide business, construction defect, real estate, and serious injury legal representation.

Kagan Confirmation Hearing

Supreme Court nominee Elena Kagan's confirmation hearing is underway today. The 19 member Senate Judiciary Committee has 12 democrats and 7 republicans. Today's hearing is symbolic. In reality, the Committee has already made its decision. Ms. Kagan meet with the members privately prior to today's hearing. Thus, Ms. Kagan will likely be confirmed to the Supreme Court unless, she says something completely off the wall today.

Toyota Ordered To Produce Sensitive Business Records

U.S. District Judge James V. Selna in Orange County ordered Toyota to produce thousands of business records related to complaints of its vehicles suddenly losing control. Some of the documents will be redacted to protect Toyota's proprietary information.

I am attorney Robert. A. von Esch IV. I practice business, real estate, serious injury, and constrution defect law. If you have any questions, please contact me via www.voneschlaw.com.

Internet Kill Switch

The Cyber Security Act of 2009 has resurfaced with proposed changes. Controversy surrounds whether it allows the US Government to shut down the internet, including private communication channels, in a state of emergency. Some experts say that it confers this power. If so, this has serious First Amendment implications. Expect the US Supreme Court to weigh in if this version of the Act is enacted.

I am attorney Robert A. von Esch IV. I practice real estate, business, construction defect, and serious injury law. I can be reached via www.voneschlaw.com.

Photo Enforcement Citations Inadmissible Hearsay

This blog is about an area of the law that is outside of my practice area. However, I thought it was interesting.

Last week, an Orange County Appellate Panel found that intersection camera citations are inadmissible hearsay. Unless the prosecutor puts a representative on the stand from the camera company or from the government to testify that the photo is a government record or business record, the photo is inadmissible. The photo enforcement citations are no longer automatic fines that must be paid by the public. Challenge the citation and you just might win.

I am attorney Robert. A. von Esch IV. I practice personal injury, real estate, business, and construction defect litigation. Please contact me via www.voneschlaw.com.

My Firm Has Added New Talent To Better Serve Clients.

I am working with Jerry La Cues in an of-counsel capacity. As of counsel, Mr. Lacues will be available to assist my clients when necessary. Mr. Lacues is a 30+ year litigator, with extensive experience in secured transactions, real estate, business, and personal injury matters. I am happy to have Mr. Lacues' expertise available.

I am attorney Robert A. von Esch IV. I represent entities and individuals in real estate, construction defect, business, and personal injury matters. For more information or to contact me, please visit www.voneschlaw.com.

The Value Of Your Personal Injury Case.

If you have been injured as a result of the carelessness of another, you may have a right to compensation from the negligent person. In order to assess the value of your case, you must consider the following:

1) Lost Wages

2) Medical Bills

3) Cost of Future Care

4) Pain and Suffering (1-3x the value of medical bills, depending on severity of injury).

5) Property Damage (car repairs, etc.)

6) Future Lost Earnings (if you can no longer work in the same capacity)

7) Loss of Consortium (spouse's loss of companionship, including sex, as a result of injury)

8) Punitive Damages (if accident was a result of careless disregard or with malice).

I am attorney Robert A. Von Esch IV. I practice property damage and personal injury law. If you have any questions or would like to get in contact with me, I can be reached via www.voneschlaw.com.

Foreclosure Consultants

California's Mortgage Foreclosure Consultant Law (Civil Code 2945) requires foreclosure negotiation or consultant firms to comply with several stringent requirements, including but, not limited to the most important three requirements in my opinion:

1) there must be a signed written contract that discloses the exact nature of the foreclosure consultant's services and the total amount and terms of compensation.

2)the mortgage foreclosure consultant must be licensed to provide the service.

3)no up-front fees can be collected by the mortgage foreclosure consultant.

If the mortgage foreclosure consultant fails to comply with these simple requirements, he is liable for any actual damages, plus attorney fees.

I am attorney Robert A. Von Esch IV. I represent plaintiffs and defendants in real estate and business matters. If you would like to contact me, please visit my website at www.voneschlaw.com.

Client Communication

Returning your phone call is one of the most important things your attorney can do. There is nothing more frustrating than placing several unanswered calls to your attorney. A happy client is a client that has access to his lawyer.

Even if there is nothing to report, a simple call to a client, telling him that there are no new developments, goes a long way in developing a relationship with the client. Clients want to be informed. Information builds trust, which builds ongoing relationships.

I am attorney Robert A. von Esch IV. I handle business, real estate, personal injury, and construction defect matters. If you wish to contact me, please visit www.voneschlaw.com.

Subcontractor Fails To Supply Additional Insured Coverage

In today's world, subcontractors often times name their general contractor's as additional insureds (AI). In many other trades, parties can name others as AI's. However, if you have been promised to be named as an AI or have promised to name someone else as an AI, you must make sure that the AI endorsement is provided. A mere promise of insurance is not enough. The AI endorsement should be issued by the insurance agent or broker as well. Without the AI endorsement, the AI carrier is likely to deny the claim on behalf of the AI. If this happens, the person that was promised AI coverage is likely to sue you for breach of contract, negligence, or even fraud (depending on the circumstances). Likewise, if someone has failed to properly name you as an AI and the carrier denies your AI claim, you may have a case for breach of contract, negligence, and fraud.

If you are not sure that you have properly complied with your AI obligations, contact your insurance broker or attorney. Better safe than sorry.

I am attorney Robert A. Von Esch IV. I practice business litigation, construction defect, and real estate law. If you have any questions, please do not hesitate to contact me via http://www.voneschlaw.com/.

Evidence Preservation

It is all to common for evidence to disappear when litigation becomes apparent. Emails disappear, surveillance tapes are recorded over, and physical items are misplaced. I recommend sending opposing counsel or party a letter requesting them to preserve any important items early on in the case. This sets up a spoliation motion in the event this important evidence is lost or destroyed.

A court can sanction your opponent if evidence I'd destroyed or lost after being advised to retain it. Sanctions may include a presumption of fault, exclusion of your opponent's witnesses or evidence, or an entry of default in your favor. If evidence goes missing, I like to take the deposition of the persons that had custody or control over the missing evidence. This may lead to information that proves that your opponent intentionally or negligently destroyed evidence, which may warrant sanctions. Preservation of evidence is critical. For techniques on evidence preservation and sanctions, please contact me via www.voneschlaw.com.

Business and Bankruptcy

It seems as if litigation is booming on collection matters. I have several collection matters pending and each of them has one thing in common: one party doesn't have money. This probably doesn't come as a surprise in this economic climate. The question I am constantly faced with is whether bankruptcy is the best way out. There is no simple answer. Ultimately it depends on whether you are willing to lose control over your assets, as the bankruptcy court will assert control over them. Also, it depends on whether you plan on continuing to operate your business, which is important for people that have developed a business brand name.

I try to discuss the bankruptcy option with my client as early as possible in the case, once I am advised by the client that the amount sought is substantial considering their financial position. I have relationships with bankruptcy attorneys and involve them in the case once it becomes clear that it may be a better alternative for my client than litigation. Each case differs. Bankruptcy is not for everyone.

If you are being sued, discuss the bankruptcy option with your attorney. If you have any questions, please do not hesitate to contact me via www.voneschlaw.com. I practice business
and real estate law.

Accidents May No Longer Be Covered Losses

A recent case has just held that intentional conduct, with unintentional results is not covered as an "accidental loss" under an insurance policy. Fire Insurance Exchange v. Superior Court 181 Cal App 4th 388 (2010). This is a big deal, here is why. If you are a contractor or homeowner that built a home on a lot but, inadvertently built a small portion on the neighbor's side of the property line, you have no coverage for the lawsuit when the neighbor sues you for encroachment, nuisance, negligence, or trespass. The reason: you intended to build the house. It does not matter if you unknowingly or accidentally made a mistake on the placement of the home and inadvertently placed a portion of the structure on the neighbor's lot.

Another example of how this will impact regular people. Two kids are playing by the pool, when one kid decides it would be funny to throw his friend in the pool. Unfortunately, he does not throw is friend far enough and his friend hits his head on the side of the pool and suffers a fractured skull. He is sued by his injured friend for negligence to cover the medical costs and he tenders the lawsuit to his homeowner's insurance carrier. The carrier can deny coverage because the boy intended to throw the other boy. It does not matter that he did not intend to hurt his friend.

I am attorney Robert A. von Esch IV. I handle construction defect, real estate, business, and personal injury matters. If you have any questions about this article or any other matter, please do not hesitate to contact me via www.voneschlaw.com.

Mixed Motives Employment Case To Be Decided By Supreme Court

An important case is now pending before the CA Supreme Court: Harris v. City of Santa Monica. Essentially, Harris (a pregnant bus driver) said she was fired because of her pregnancy. The City said she was fired because of her bad performance record, nevertheless, it requested the Court to allow it to put on a mixed motives defense. Essentially, this defense was designed to allow the City to show that it would have fired Harris regardless of her pregnancy, even though her pregnancy may have been considered as one of the reasons to fire. Traditionally, all that a plaintiff is required to prove is that the protected trait (race, sex, religion, etc) was a motivating factor behind the decision to terminate; even if other reasons were considered (poor performance), plaintiff would prevail.

The Court refused to allow the mixed movtives defense. The Court of Appeal reversed and allowed the mixed motives defense. The final decision will now be made by the CA Supreme Court. This is one to watch as it will have an impact on employment litigation.

I am attorney Robert A. von Esch IV. I practice business litigation. If you would like to contact me or have additional questions about this article, I can be reached via http://www.voneschlaw.com/.

Mello Roos Projects Subject To Prevailing Wage?

A case is now pending before the Second District Court of Appeals involving the Azusa Land Partners against the Industrial Relations Agency (IRA). The dispute arose after the IRA found that the Azusa residential construction project was a public works contract to the extent it relied upon Mello Roos to install certain portions of the project, such as pipe lines, sewers, schools, etc. As a result, these portions of the job were subject to prevailing wages (20-30% higher than private construction wages). Azusa sued the IRA to overturn its decision, the Los Angeles Superior Court agreed with the IRA and held that the job was a public works project.

This is an important case for contractors and consumbers alike. If the Court of Appeals upholds the decision, residential housing costs are going to get more expensive as the cost to build the projects will increase. This is one to watch.

I am attorney Robert A. Von Esch IV and I handle construction disputes, construction defect, and real estate matters. If you have any questions, please contact me via www.voneschlaw.com.

Court Layoffs Will Result In Civil Court Delays

The headlines over the past two weeks have made it clear: LA Superior Court is laying off nearly 300 support staff workers. This will result in the closure of Court departments. As a result, civil matters will get sent to the back burner because criminal and family matters have priority. The days of civil lawsuits taking 3-5 years to complete are back again. So much for fast track legislation that required a civil matter to be resolved within one year, unless, it was deemed a complex matter. Construction defect, real estate, business, and personal injury lawsuits will take a lot longer for plaintiffs to resolve, as these are all civil matters.

I am attorney Robert A. Von Esch IV. If you have any questions about any of the above, please refer to my website at www.voneschlaw.com or give me a call.

Interesting Employment Decision by CA Supreme Court

On February 18, 2010, the CA Supreme Court overruled the CA Court of Appeals and held that Labor Code Section 233 (aka "kinder care" statute), which permits an employee to use accrued paid sick leave to care for ill relatives, does not apply to paid sick leave employment agreements/policies that provide for an uncapped number of compensated days off. Thus, if your sick leave policy provides for a capped number of compensated days off, Labor Code 233 applies. If your sick leave policy is very generous and provides for unlimited sick days, you don't get the protection of Labor Code 233. This decision is twisted. Look up McCarther v. Pacific Telesis Group for the complete decision.

I believe in being fair to employers and understand that they are providing jobs, which is important for society. Employers need to be protected, just as much as employees need protection. However, in this case, the employers could have protected themselves very easily by simply revising their paid sick leave policy. The CA Supreme Court just took away an entire employment groups paid sick under Labor Code 233. I wouldn't be surprised if this case is revisited by the higher courts in the future.

I provide business litigation legal services in Southern California. I represent employers and employees. If you have any questions, please do not hesitate to contact me. My webiste is http://www.voneschlaw.com/.

Real Estate Brokers Be Wary

You must have a valid real estate brokers license to obtain compensation for brokering a real estate transaction. If you do not have a valid license at the time of providing the service, you have no right to compensation. See California Business & Professions Code 10136.

It is very popular in the real estate business to pay a "finder" fee to someone bringing a buyer and seller together. This technically is legal. See Tyrone v. Kelly, 9 Cal 3d 1, 11-12 (1973).

However, if the "finder" engages in negotiations between the parties, even to the slightest extent, a brokers license is required. See Rees v. DRE, 76 Cal App 3d 286, 295 (1977).

Thus, if the "finder" encourages one party to pay a certain price, offers advice about a fair price, or does anything other than simply introduce a buyer and seller, he risks not being entitled to any compensation. Without a valid license, no payment can be had, despite having a contract or promise to do so.

I am attorney Robert A. Von Esch IV and I provide business litigation, commercial real estate, and construction defect legal services. More information about my practice can be found at http://www.voneschlaw.com/

Legal Advice About Your Home Remodel

No license no pay! That's right, if you are engaged in a construction dispute with your remodel contractor or any contractor, check the California State Contractors License Board website to verify whether his or her licence is in good standing.

If your contractor does not have a valid license in good standing, he or she has no right to collect any fees for work performed. You could have the contractor build you an entire house that cost $500,000 and owe him or her absolutely nothing if the work was performed without a valid contractor's license in good standing.

In fact, if your contractor has already finished the job and you have already paid your contractor for the work, you can demand reimbursement of all money paid. There are well known cases where contractors have worked on large commercial projects worth millions of dollars and accidentally allowed their license to expire, and have had to forgo any payment for their hard work.

If you are a contractor, there is a lesson to be learned: Keep Your License In Good Standing. If you are a consumer, there is also a lesson to be learned: Check Your Contractors License.

If you have any questions, please feel free to contact me at www.voneschlaw.com

Heavy Rains Will Test The Quality Of Your Home Or Commercial Property

The heavy rains offer property owners a unique opportunity to guage the quality of the construction of their home, office, warehouse, etc. Most the of time, Soutern California is fairly dry. However, we are now in an El Nino rain cycle. As a result, your property will be put to the test like never before.

All to often, the waterproofing systems of your property are improperly installed. This means that the waterproofing paper, roofing, flashing, and other weather resistant components will leak. Infiltration of water into your property can have devastating consequences, such as mold growth or dry rot. Often times, your insurance carrier will refuse to cover this damage.

As a result, you will likely bear the cost of repair on your own. The cost to remove and repair mold or dry rot can be very expensive. After you have addressed the mold or dry rot, you must then repair the waterproofing system failure that allowed water to enter your property in the first place.

If your property is relatively new, you may be able to compel your builder or contractor to repair the damage. After all, it is their fault that your property experienced water damage in the first place.

Depending on the type of property and the age, the process for obtaining compensation from your developer or contractor varies.

Residential Property:

If your home was built and closed escrow after January 1, 2003, it will be subject to Senate Bill 800 (Civil Code 895 et seq). This is a time and rule sensitive process that requires you to give the builder or contractor notice of your problems, allow them to inspect and propose repairs, mediate (settlement talks), and then litigate (trial or arbitration) if necessary. Failure to comply with this process properly, may result in a waiver of your claim.

If your home is a condominium conversion (typically an apartment turned into a condominium unit), Civil Code 1134 will control. Civil Code 1134 requires a convertor (condominium conversion builder/seller) to provide you with a list of all defects relating to the major systems, such as foundation, structure, roof, stucco, heating and airconditioning, plumbing, electrical, etc. Failure to do so, may subject the conertor to liability.

Commercial Property:

If your commercial real estate is defective; product liability, warranty, and negligence principles will apply.

Regardless of whether your property is residential or commercial, you should keep a watchful eye for the following defects during rainstorms: damp walls, black spots on walls (could be mold), moist spots on carpet or flooring, musty odor (could be mold or dry rot), and dripping from the ceiling or walls. Also look for water stains below the inside of your windows and in the corners as these are common signs of window leaks. If you can, look inside the attic. This will likely be the first place you will spot a roof leak.

If you see any of these conditions, take pictures and document them as best as you can. The more evidence you preserve, the better chance you have of getting these items fixed by your developer or contractor.

You should obtain the assistance of an attorney for these matters. Most construction defect attorneys work on contingency, which means they work for a percentage of any recovery. Thus, they only get paid if you get compensation from your developer or contractor.

These cases are complicated and you can bet your developer or contractor will be getting assistance from their attorneys. Don't get taken advantage of by your developer or contractor, hire an attorney.

I hope this helps. If you have any questions, please refer to my website http://www.voneschlaw.com/ or call me toll free at 866-605-0023. I represent Southern California property owners in construction defect matters.