Breach of Fiduciary Duty Claims

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Breach of fiduciary duty cases requires careful analysis of all the facts and analysis whether you are a beneficially who want to raise this claim, or you are facing allegations of breach of fiduciary duty. Either way, we have attorneys who will take a principled approach towards serving your needs.

There are hundreds of ways in which a fiduciary may breach the duties correlative to their status. This includes;

· Mismanaging, or misappropriating assets within an estate

· Negligence when it comes to timely reporting to beneficially or other interested parties including the court

· Not honoring the contents of trust, will or power of attorney

· Abuse of compensation

· Failing to help mediate disputes

· Conflict of interest

· Failing to act to actions such as failing promptly to liquidate stocks or bonds and much more

Many at times, these claims involve a fiduciary who is unaware of his or her responsibilities. However, such should not be an excuse and won’t hold especially for co-operate related fiduciaries. Whether you need to bring up a claim against a fiduciary of you have been named in a lawsuit, it is more than important to get an experienced attorney. We encourage that you seek legal guidance from Von Esch Law Group fiduciary duty attorney right away.

We will help you adhere the standard required and answer all questions you have about how to perform your duties correctly and advise you on the way forward when an issue arises concerning beneficially rights. We will also help you follow direction related to administration of an estate, and we will make sure that you are able to fulfill all your duties related to reporting and keeping interested parties reasonably informed.

If there is a conflict of interest when you are named as a beneficially to an estate, we will help you avoid or deal with any accusations of breach of fiduciary duty claim. We can also help challenge executor compensation if or when an executor or a trustee fails to perform his or her duties. Our attorneys can also handle breach of fiduciary duty claims in other legal ‘arenas’ such as civil litigation between directors, officers, partners, and shareholders.

We understand how the impact on such a claim will affect you, and we always take decisive action to protect your reputation your business reputation and profitability. We also strive to maintain family relationships if desired or when it possible.

Considerations for Starting a Small Business

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When looking to start a small business in Orange, you want to make sure to familiarize yourself with the basics of business law in order to choose the best kind of entity.

The central components of corporation and business law include commercial enterprises carried for profit, as compared to an entity whose purpose is not to make money, a non-profit.

The simplest form of commercial enterprise in American Law is a sole proprietorship. In a sole proprietorship a single person owns all assets, is responsible for all liabilities, and personally runs and operates the business, they are in charge of and responsible for all aspects of the company.

A partnership involves two people working jointly to run, operate, and profit from a business. They are also both legally responsible for the company.

A corporation usually has the distinction of being treated as a single entity, separate from its stakeholders, when participating in any legal action. This means shareholders who own certain rights will not be treated as liable in any legal actions taken.

Corporations and business entities must be organized and operated in accordance with the state law. In the fields of taxation and business regulation, federal law is also important. All corporations and business entities must follow both state and federal law, dealing with taxes and other regulations.

On the other hand, non-profits are companies and businesses whose sole purpose Is not to make money, but to contribute to some positive cause. Because of this they do not have to act in the same sort of accordance with the law as for-profit businesses. For example, a lot of non-profits are tax-exempt. Although they are treated differently, non-profits are still regulated and help up to standards by state and federal law.

Limited Liability companies and partnerships have a lot of similarities of sole proprietorship, partnership, and corporations. However, limited liability companies and partnerships are different I the sense that they have “limited liability and management” with their partners, members, and managers. These kinds of businesses are authorized in most states.

Choosing the best entity for your new business involves a lot of consideration of both legal and business questions. Most businesses use lawyers, accountants, and entrepreneurs to handle these matters appropriately, effectively, and efficiently. And in addition, this outside help can be beneficial in the long-run conduct and operation of commercial enterprises and corporations of any type.

The excitement, innovation, and rush of starting a new business can be so overwhelming and consuming, but it is important to take the time to consider these simple decisions that will greatly affect your relations and dealings with business law. If you are looking to start a business in Orange, or anywhere, make sure you look into getting a business attorney to help you efficiently throughout the process.

Litigating With Subpoenas

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Subpoenas are an essential litigation tool used by attorneys to ensure that they have all of the information that is available. The intent of a subpoena is to get information that could have an impact on the outcome of a trial, but which an attorney would not want to disclose voluntarily. Often, subpoenas will result in the disclosure of information that can result in a settlement before the trial begins. Subpoenas can lead to a better understanding of the other side’s case with a legal search. Thus, the attorney for the party that might look culpable if the information were to be disclosed will now provide this information with a subpoena specifically requesting the information.

Subpoenas offer attorneys a chance to get information that will help prove or disprove their client’s case. Criminal defense attorneys use subpoenas to obtain witness or lay opinions that could cast serious doubt on the guilt of their clients. Information on how evidence was handled in a DUI case could be vital in putting up a proper defense.

Attorneys in civil cases will use subpoenas to get information that may result in resolving the claim without a trial, or at the least, will give an advantage in the trial to the side that was favored by the material subpoenaed.

Using the power of the subpoena requires an understanding of what a subpoena can do, and about how to get a subpoena issued. The reasons for requesting a subpoena must be established in the motion requesting it. Care must be exercised to avoid the errors often found in a request for a subpoena. The constitutional grounds for requesting a subpoena must be honored, or the request will be denied.

Subpoenas are issued by the court which has jurisdiction over the case. Every court has procedures for issuing subpoenas, and they will expect these to be followed. Courts will also stipulate how the subpoena must be served upon the person who is expected to respond.

Subpoenas must be specific in requesting information, or the judge may deny the request; subpoenas cannot be used as a witch hunt.

Subpoenas are formal legal commands and they should be taken seriously. Failure to comply with a subpoena can lead to contempt of court charges, which may ultimately lead to financial penalties and cause harm to the case you have been asked to help with.

Breach Of Fiduciary Duty Claims – How To Avoid Them and How To Resolve Them

What Is A Breach Of Fiduciary Claim?

A breach of fiduciary duty claim arises when a person who is trusted to handle certain affairs according to a prescribed agreement fails to do so. This is just one element of a claim; it is also necessary to prove that the fiduciary’s actions were contrary to the interests of the person for whom the fiduciary has responsibility. Another element of a breach of fiduciary claim stems from the failure of the fiduciary to provide their best efforts in protecting the interests of the person they have agreed to serve.

Although this is an overview of the fiduciary’s responsibility, it does capture the essence of a fiduciary’s responsibilities. Therefore, it is essential that the person who agrees to accept fiduciary responsibility fully understands the responsibilities, and these should be clearly stated in a written document. Courts at every level have ruled that a fiduciary is held to a high standard of ethical conduct, the highest standard of honesty, and they must avoid even the appearance of obtaining a personal benefit at the expense of the person for whom they are acting.

However, courts have ruled that the fiduciary must exercise all of the skill, diligence, and care at their disposal. Some legal experts suggest that this can be a problem for a fiduciary because these requirements are open to broad interpretation. However, the quality of the fiduciary agreement can greatly reduce this problem.

Actions You Can Take If You Believe You Have A Claim Against A Fiduciary

First, it is easier to prove a breach because fraud is not an essential element required to support the claim. You only need to show that the fiduciary could have taken advantage of their position for their own personal gain, and that they did so.

Simply stated, a breach of fiduciary duty occurs when the fiduciary acts in their interest rather than your interest. A fiduciary cannot obtain personal benefit by the unauthorized use of your assets. A fiduciary cannot subordinate your interests to their interests.

Our attorneys have the experience and the skill to resolve a breach of fiduciary duty claim. We can negotiate a resolution or we can litigate the matter.

Actions You Can Take To Avoid Breaches of Fiduciary Claims

The first action should be to ensure that the expectations of the fiduciary are clearly set forth and understood. This should occur in a written document that is thoroughly discussed between all parties.

The second step should be incorporating the fiduciary’s duties in the minutes of the Board of Directors which will serve to document the expectations of the fiduciary and the acknowledgement of the fiduciary that they fully understand their duties.

 

What Are Your Spousal Support Options In A Divorce?

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The spousal support options in a divorce are defined by California law and further defined by applicable appellate court decisions which are considered to be precedents in this matter. The state law mandates that permanent spousal support be determined by a careful review of numerous factors, and the courts have substantial discretion in determining what these are. Thus, the courts have a lot of leeway in awarding alimony. Temporary support payments may be ordered if it is deemed necessary.

Considering the complexities of the law and the subsequent appellate decisions along with the numerous factors a court must consider, it is essential that you have the benefit of an attorney who is highly experienced in dealing with spousal support issues. The courts consider the financial position of the supporting spouse and the ability of the supported spouse to become self-supported. The earning capacity of each party to maintain the standard of living enjoyed during the marriage will be important considerations. This means that the courts will consider the ability of the supporting spouse to pay spousal support by reviewing the supporting spouse’s earning capability along with unearned income and assets.

The courts can consider other criteria in awarding spousal support that are focused on financial matters. One such example arises when the supported spouse made it financially possible for the supporting spouse to obtain an education or a license that resulted in a substantial earning capacity and a higher standard of living than would otherwise be obtained.

The needs of dependent children for a full-time parent will also be pivotal in the spousal support determination.

Courts have wide latitude in determining the length of spousal support. While the goal of spousal support is to enable the supported party to become self-supporting within a reasonable period, this period is usually considered to be one-half of the length of the marriage if the marriage is less than 10 years old. However, nothing in the law mandates this or any other duration. The courts have the discretion to order support for any length of time, but the courts most often use the guidelines that are set forth in case law precedents. California courts never favor lifetime support. The California appellate courts have held that the supported spouse is entitled to support only for the period that is required to become self-supporting. For marriages that lasted longer than years, the courts generally expect the supported spouse to become self-supporting as quickly as is reasonably feasible.

Spousal supports can be terminated or modified by seeking an order from the court. A thorough justification must be provided, and such a request can be objected to by the supported party.

The supporting party must understand that spousal support can last longer than is necessary if you are not proactive in presenting your side of the matter.

The Family Law Section at the VonEsch Law Firm can discuss your options regarding spousal support. Seeking the assistance of an attorney will be highly beneficial. Keep in mind that California courts only award spousal support in only about 15% of divorce and separation cases.

5 Things To Avoid When Going Through A Divorce

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It is normal to feel confused and overwhelmed when going through a divorce. Sometimes people make mistakes that cost time, money and their sanity. The usual stress level rises to an almost intolerable level. However, you can take steps to recognize the 5 things to avoid when going through a divorce. Avoiding these 5 things will help you to move on to the next phase of your life in better shape and not bitter or broken.

1. Avoid Failing To Look At The Big Picture

Apply the life lessons you learned about planning for your future. Don’t allow events to unfold and then react to them. This will make you feel helpless and like your life is spinning out of control. Instead, look at the big picture which is where you want to be six months and a year from now. Plan on taking the steps to get there. Look at some “what if” scenarios. Plan for contingencies and the worse-case scenarios. You will then be prepared for all events and especially the ugly ones.

2. Don’t Let Your Mind Be Ruled By Your Heart Or By Your Anger

Emotions should not be the basis for making decisions; logic should be. Divorce is a business transaction. Assets and debts have to be divided. This is what you have after you strip away the heartache, grief, anxiety and a feeling of being lost. Putting all of these feelings on the shelf is important. You cannot and should not minimize the good things you and your spouse had together, but these memories cannot control your planning.

You are experiencing a broken heart and a lot of anger. These emotions often just prolong the inevitable, and they run the bill up. Many of the emotions are based on an unrealistic belief that you can “win” the divorce. A divorce really doesn’t have a winner. Trying to be one only prolongs your chance to move on to a better life. Costly and bitter disputes yield nothing but lingering grief.

3. Letting Someone Else Decide For You

It can be easy to give up and let someone else make decisions for you. Of course, you need legal counsel, but ultimately it is you, not your friends or your attorney that has to live with the decisions made. Divorce professionals working for you is good, but seeking the wisdom of a group can be bad.

4. Failing To Educate Yourself

If you educate yourself about the divorce process and the personal feelings involved, you will feel much better equipped to deal with all of the issues.

5. Not taking time for yourself

Separation can be a lonely place to be, but so can a quick attachment that fails to meet your needs and probably their needs as well. Take time to find out who you are now, and who you want to be. You need to avoid further disappointment.

Defective Product Claims

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Product liability occurs when a manufacturer, distributor or retailer produces or sells defective products to the public that cause harm to a person. This is a general description of product liability, and the details about how product liability can be asserted follows.

If you have suffered injuries due to a defective product, then you have the right to file a product liability law suit against the manufacturer, distributor, or retailer. Keep in mind that filing a personal injury claim of this kind can be difficult because you must establish that some very specific factors regarding the product caused it to be defective. An attorney experienced in product liability claims can determine if these factors, known in legal terms as elements, existed:

> You have sustained an injury while the product was being used in a reasonably foreseeable way; and
> The product defect caused your injury.
> The product created an unreasonable hazard.
> Inadequate warnings or failures to warn are determined.
> A manufacturer markets an item knowing that it is going to be used without an inspection for defects and the item proves to have a defect that results in harm to a person.

You will not have a claim for damages if you were using a product in a careless manner. However, you might have a claim if you used a product in a way that was not specifically described in the product literature and you suffered an injury from doing so. This is a difficult claim to establish, but if the manufacturer did not warn against any specific usage, then you may be able to file a claim for damages. This is also a difficult claim to pursue, but we can discuss this and any other potential claim with you.

California has the strict liability rule which means that you do not have to prove that negligence in ensuring the safety of the product has caused your injury. This means that you only have to prove that your injury was caused by a product defect. While the strict liability rule is an easier standard to meet, it does not mean that a claim for damages will be met by less than an outright aggressive response from the defendant company. Product liability waters are difficult to navigate, but our attorneys are more than capable of meeting any challenge confronted in pursuit of your just compensation.

Every document pertaining to the injury should be retained along with photographs of the injury. Keep information about the product such as the instructions and the manual. Medical records are important. Keep in mind the statute of limitations allow one year to file your claim. The one year time line begins with the date you realize you have suffered an injury.

What Is Defamation Of Character?

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Defamation is an all-inclusive word for statements that damage a person’s reputation in the community. Defamation that occurs in the written form is called “libel,” and defamation that is spoken is called “slander.” Defamation is not a criminal wrong, but it is a civil wrong known as a “tort” in the language of the law.

California defamation law requires that the victim must prove that the alleged act of defamation meets the following criteria before they can sue for damages:

> The statement must be published meaning that a third party saw or heard the statement. The term published does not mean that the statement was printed in a book. It means that the statement was made public by either the electronic medium or some type of printed medium and it tends to lower the reputation of the victim in their community.

> The statement must be false, and it must be proven to be false. The statement must be made as a fact. An opinion cannot be considered false because opinions cannot be proved to be objectively false.

> The statement must be injurious. Defamation law requires that the victim prove actual harm such as the loss of a job, being treated rudely by neighbors and friends because of the statement, or that they suffered from false press reports that were based on the statement. Proving falsity is a complex matter and the advice of an experienced attorney should be sought.

> There should be no doubt in the mind of the average person that the statements refer to the victim.

Most witnesses are protected from a law suit. Statements made by witnesses who make a false statement in court or during a deposition cannot be sued for defamation. The law protects a witness because fear should not constrain them.

Defamation is an act of libel if the defamer published a defamatory statement about a person in a written or another form, and other people became aware of the statement. The law does not impose any other criteria because it is assumed that when a defamatory statement has been made in a written or other form, it will remain injurious for a long time. Again, this is also a complex matter and the advice of an attorney should be sought.

A private person who is defamed has more protection than public figures have. A private person who is suing for defamation can prevail without having to prove that they were defamed by a person acting with actual malice. This means that the defamer can be sued if they have failed to check the accuracy of their statement and acted in an otherwise negligent manner.

It is essential that proving defamation in California must meet the above elements or criteria by a preponderance of the evidence. This means that the evidence shows that it is more likely than not that each element or criteria is met.

Defamation of character is a complex principle in California law, and it is essential that an attorney reviews each fact that tends to support a claim of defamation.

How Can I Prepare Myself for a Custody Battle?

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If you are looking to regain custody of your child/children, there are many steps you could take to improve your chances of doing so. There are also a few key tips about the California divorce process that will make you feel better prepared and informed for your custody proceedings.

First Step:

Choosing the best family law attorney you can afford is first and foremost the best way to start your journey. You will get the most knowledgeable and experienced help possible!  Hiring the right attorney could mean the difference of getting what you wanted or getting nothing at all. Some advice: You don’t want to slack off any of this process when your children’s future is at stake!

Second Step:

This may sound cliché, but keeping a journal and documenting this journey could benefit you greatly. Here are a few things you’re going to want to keep track of:

• How much time you spend with your children
• What activities you are all involved in
• How much time the other parent spends with the child/children
• Note the time the other parent is gone, when they go to work and come home, and when they travel out of town
• Note any negative remarks, threats, arguments, profanities, or any other behavior that would impact custody

It would be in your best interest to keep track of the past six months to a year. Make sure you write down everything you have done, as well as, everything the other parent has done. Be sure to be ready to prove you are an active and involved caretaker, and that you deserve custody of your children. Bringing photos or an album of your child being happy in your care could only help your situation.

Third Step:

Showing that you are well established and are able to provide for your child/children is important. Make sure the court is aware of the fact that you:

• Have a job and a place of residency
• Have already been preparing for school and child care
• Have community ties through extracurricular activities, volunteering at school, involvement in your neighborhood, etc.

Be prepared to show why the other parent is not capable of providing for the child properly. It might help to find people who would testify about problems with the other parent’s inadequacies.

Do not leave the family residence until you have a custody arrangement in place.

Do not leave the family residence without a court order or written agreement if you are planning to move out, even without the children. A written agreement needs to set the custody arrangement to start once you have left home.

Full Custody and Over-Night Visitation

Both custody and visitation are decided in court on what is in the child’s best interest. Although it is best for the child to have strong relationships with both of the parents. If this is a civil separation and there isn’t any negativity with your ex, there is no reason he or she can’t have overnight visitation.

Questions for Your Attorney

As you go through this custody process, be sure to ask your attorney all the right questions. Here are a few you should ask:

• What factors are important in gaining temporary custody of my children?
• What are the consequences of moving out of my house and giving temporary child custody to the other parent?
• If I lose temporary child custody, what should I do to gain or improve my situation and get a better permanent custody arrangement?

The Equitable Division Of Property And A Business

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The Von Esch Law Group prides itself on its unique expertise and experience in matters of property division and the division of other assets. Our business valuation process is handled by our in-house business and real estate department which can provide valuable insight into the many complexities of business and property division. Our experts include highly qualified investigators, appraisers and forensic accountants and these experts are a formidable team when working to achieve the best interests of our clients.

We know that many factors are involved in assessing the character of a property and the property’s current value. The complexities of this process include but are not limited to:

-The origin of the property or the business (Is the property separate or community property?)

-The valuation of the property and the busienss.

-Ownership agreements and structure

-Accounting practices

-The business type or class

-The existence of a breach of fiduciary duty

-The existence of Prenuptial and Postnuptial agreements.

The primary factors in assessing the value of assets are designed to:

-Achieve an equitable division of property and a business.

-Determine property and business buy-outs.

-Protection for our clients from unfair asset division demands.

All parties to an equitable division of assets will have a perception of what the value of each asset is, and usually they do not share the same perception. Since there are several approaches to establishing an equitable valuation, our expert staff will use the most accurate methods.

The commonly accepted method used to establish the value of property involves the assessment of data that will establish value according to the value of similar properties in the area adjusted for any high-end improvements. Our experts know the best method to use for ensuring that our valuation will be approved by a court if that step is necessary. However, our approach is so thorough and very well documented that the opposition usually will not oppose it.

Our methods for valuating a business are much more complex, but our staff is highly trained and very well experienced in valuing a business regardless of its activity. We go well beyond the minimal valuation of using just the money that would be derived from the sale of assets less the amount required for debt liquidation. Using complex but proven mathematical formulas, we will look at trends found in historical earnings and the results of gross income multipliers. Assessing the value of the goodwill of the business is also important in arriving at a value.

Once a value has been established, we will recommend a method for equitable disposition of the business. We will protect the interest of our client in making this recommendation. Selling the business may not be the best alternative, so we can recommend a buy-out agreement for the other party. We can also structure a continuous operation agreement with a structured schedule for buy-out payments over a period of time.

The Von Esch Law Group can deal successfully with any challenge you face in a division of property and a business. Our experts will manage any challenge you face in these issues.