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Options
TrustsBeyer, Pongratz & Rosen offers detailed assistance, personalized service, and reputable legal advice regarding trust creation, administration, and litigation. They understand that the resolution of trust and estate disputes frequently requires a mixture of legal, accounting, investment, and business considerations often in the context of intense family conflict dynamics. Such cases present not only a challenge to the traditional skills of a lawyer in trial advocacy and negotiation, but also in counseling clients in conflict with family members or fiduciaries where the health of longer term relationships is at stake. back to the topWillsWills serve as instructions to the probate court to how an individual wants to have his property distributed at death. Our Will and estate planning attorneys give personal service in preparing Wills and advise clients to keep them up to date as circumstances and the law changes. back to the topProbateWhen a person passes away, his or her survivors will have to
handle the administration of the estate. This includes filing
federal and state tax forms on behalf of the estate, as well as
transferring title of property to any beneficiaries. In
California, the probate court supervises the probate process,
which includes the following steps: Estate PlanningEstate planning is the act of preparing one’s estate to pass to the next generation or the beneficiaries as may be chosen by those doing their estate planning. It generally will include the use of certain legal entities and documents which would include a variety of Revocable and Irrevocable Trusts, Wills, Powers of Attorney over Asset Management, Powers of Attorney over Healthcare Conditions (now referred to as Advanced Healthcare Directives) Family Limited Partnership Etc. The goal of estate planning is to insure one’s assets pass to the intended recipient after one’s demise, or during one’s lifetime, with as few taxes paid as legally possible and with as little time, expense and depreciation to the estate assets as possible. Gifting plans may be utilized to bring down the size of an estate to reduce estate taxes, capital gains tax or other taxes. Estate planning is also to insure that management of assets and healthcare conditions are also taken care of in case one becomes incapacitated. Everyone needs some type of estate planning which could range from something very simple to something more complex. Business StructuringEach and every business, whether big or small, needs to be
structured in such a way as to reduce taxation, insure control of
the business with the right persons and limit liability which
could be incurred because of employees or other business matters.
We use a variety of entities to hold a business, including Sole
Proprietorships, General Partnerships, Limited Partnerships,
Corporations, Limited Liability Companies, as well as other
entities depending upon the client’s needs. Other transactional
work can also be prepared, including buy-sell agreements,
contracts, succession agreements, business buy-out agreements,
customer contracts, employee contracts and employee manuals, and
other such agreements to insure that business matters can go
forward with as little liability or other issues arising as
possible. A good business plan is just good business. Asset ProtectionIn today’s litigious society, it seems not a day goes by without someone talking about someone getting sued for this or that, many times for things which were not their fault or for things they were never involved in. The Law Offices of Beyer, Pongratz & Rosen, use time proven methods of protecting one’s assets from creditors to insure that they are not taken by unwanted persons. Preparing now will help you sleep tonight. back to the topCorporationsMaintaining those oft-neglected corporate minutes can mean the
difference between survival and failure for a business facing an
IRS audit, court action, or bankruptcy. Protect Your Corporate Shield
back to the topLimited Liability CompaniesWant your business to enjoy the flexibility of a partnership and the legal protection of a corporation? Introducing the limited liability company ("LLC") - California's newest business entity. Because of its dual qualities of corporation protection and partnership tax treatment, the LLC could replace general partnerships, limited partnerships and S corporations as the future entity of choice. The Basics - An LLC files with the Secretary of State and, once approved, becomes legally registered in California. CC ¶17050. It must have at least one or more "members" which may be U.S. or foreign individuals or entities, such as partnerships, trusts, corporations, estates or other LLCs. Professionals (lawyers, accountants and architects) are prohibited from registering as an LLC, but may now form a Limited Liability Partnership. Note: There are a surprising number of licensed professionals in California who are thus ineligible to form an LLC. The LLC uses an operating agreement, similar to a partnership
agreement, to control business, financial and tax provisions. The
operating agreement may be oral, although it should be in writing
and signed by all the LLC's members. It is not filed with the
Secretary of State. Management of an LLC may be vested either in
the members or in certain designated "managers."
Managers do not have to be members of the LLC, and even
corporations may serve as managers. Through its provisions, the
operating agreement determines whether the LLC is taxed as a
partnership or corporation.
NOTE: The legislature just raised these fees for the year 2000, while reducing some fees for corporations. For purposes of the fee calculation, total income is defined as gross income (under IRC Sec. 61) without deducting the cost of goods sold. The fee is based on the LLC's income from all sources, including income from sources both within and outside of California. In certain cases, the fee is calculated by taking into account the income of "commonly controlled limited liability companies".
The Advantages - Members of an LLC are shielded from personal liability to the same extent as corporate shareholders. In general, the LLC will be treated as a partnership for tax purposes; it will be a flow-through entity in which income and losses are reported directly by its members. Unlike an S corporation, special allocations of income, expenses, deductions and losses can be made among its members, and an individual member's losses are not limited by the member's investment in the LLC. Unlike a partnership, management can be vested in nonmembers. Unlike a limited partnership, members may be actively involved in the LLC's management, without risk of personal liability, as can occur to a limited partner. An LLC is an ideal substitute for an S corporation when foreign shareholders, corporations or trusts are desired as shareholders. The LLC provides estate planning opportunities since trusts and estates are eligible shareholders. Also, the LLC could eventually eliminate both general and limited partnerships as business entities since it offers the same tax treatment and management opportunities, yet with the added advantage of limited liability to all its members. LLCs might also pay a substantially lower California income tax than an S corporation. The Disadvantages - As a new entity, an LLC offers little legal precedent. Also, Congress has not passed any tax legislation establishing the LLC as a partnership for tax purposes. Thus far, the IRS has ruled that the LLC will qualify as a partnership for tax purposes, but there is nothing in the Internal Revenue Code that permits such treatment. In cases where there is a choice between using an S corporation or LLC, the former should be used as it is an established business and tax entity. Conclusion - Forming an LLC should be seriously considered whenever two or more people are considering a business or investment venture. The LLC offers distinct advantages over both general partnership and limited partnership structures. It is similar to an S corporation, but without its restrictions. LLCs, however, cannot be used by professionals, or in situations when a regular "C" corporation would take advantage of the corporate reorganization tax provisions or the ability to have separate classes of stock. An LLC is particularly well suited for real estate ventures containing corporations, trusts or foreign investors or new business ventures involving existing corporations. Also, an LLC is excellent as an estate planning vehicle for investments between an individual and his or her family corporation, trust or partnership. back to the topLimited PartnershipsDespite the popularity of limited liability companies (LLCs), limited partnerships remain a viable entity of choice in many situations. Business owners desiring to avoid the onerous California “gross receipts tax” on LLCs (the validity of which is currently the subject of pending litigation) might find it desirable to form a limited partnership instead, while still shielding individuals from personal liability by forming a separate LLC to serve as the general partner holding a small enough fractional interest to avoid triggering a significant gross receipts tax. In addition, family limited partnerships provide a valuable estate planning tool, venture capital funds typically form as limited partnerships for a variety of business reasons, and others may find it in their interests to do so as well. On September 27, 2006, Governor Schwarzenneger signed Assembly Bill 339 into law, in effect rewriting California’s existing limited partnership act. The new law, commonly known as “Re-RULPA” (for Re-Revised Uniform Limited Partnership Act), is based on a uniform act already enacted by several states. As a practical matter, Re-RULPA contains surprisingly little substantive change from California’s existing law, which was itself enacted as recently as 1986 to replace a statutory framework that had been in place for many years. Among the uniform act provisions not adopted in California is a provision that would have permitted an existing limited partnership to elect to become a “limited liability limited partnership,” a status which shields the general partners from debts and obligations of the partnership as if the partnership were an LLC. California limited partnerships wishing to avail themselves of similar protection will still have to do so by converting to LLCs, or using the double-entity approach described above, or taking other measures. Further, entities doing business in California should not assume that by forming a “limited liability limited partnership” in a foreign state, the general partner is protected from liability. Re-RULPA does not clearly establish that such protection will be recognized by California courts and, in fact, arguably provides to the contrary. Re-RULPA is effective (i) from and after January 1, 2008 with respect to limited partnerships formed on or after that date, (ii) from and after January 1, 2007 with respect to limited partnerships formed prior to January 1, 2008 that elect to be governed by Re-RULPA, and (iii) from and after January 1, 2010 with respect to all limited partnerships. Most existing limited partnerships will probably find little reason to elect to be governed by Re-RULPA before January 1, 2010. However, circumstances do exist in which such election might be desirable. For instance, an existing limited partnership desiring to protect its limited partners from claims of breach of fiduciary duty may find the election desirable, as Re-RULPA provides that no such duties exist despite California case law suggesting otherwise. Feel free to contact us if you have any questions about the effect of Re-RULPA on your business, estate planning or other concerns. AdoptionAdoption policy in the United States is undergoing a great deal of public scrutiny. News reports in recent years have featured dramatic stories of conflicts between biological and adoptive parents, raising questions about how to balance the rights of both families and about which policies further the best interests of the adopted child. These cases have helped clarify important legal and social questions surrounding adoption. Although adoption remains a hotly debated and legislated area of the law, most adoptions proceed through the legal system with little, if any, conflict. For many families, adoption is a perfect way for adults to provide love and care to a child whose biological parents are not able to do so. Adoption law, like most family law, is state law; there is very little federal regulation of adoption. Each state has the authority to create adoption laws and to regulate adoption agencies. One major exception to this rule concerns adoption of a child from another country. The United States Immigration and Naturalization Service (INS) imposes additional regulations on such adoptions; the adoptive parents must be United States citizens, for example. Adoption in California is governed by the California Adoption Law.
In an adoption, parental rights are transferred from the natural or birth parents to the adoptive parents. Adoption is a legal arrangement; the adoptive parents become legally responsible for the child they adopt and they obtain all legal parental rights with regard to the child. This legal proceeding is so complete that a new birth certificate is issued for the child. It shows the adoptive parents' names as the child's mother and father at the time of birth. The original birth certificate is retained but sealed, so it can be accessed only by court order. There are four types of adoptions of children under age 18 in California: relinquishment or agency adoptions, independent adoptions, intercountry adoptions, and stepparent adoptions. Most of the laws and regulations concerning adoptions are applicable to so-called stranger adoption or unrelated adoption. That is, people seek out a child to adopt through an acquaintance or an agency. Intercountry adoptions are similar to adoptions completely within the United States, but additional requirements and procedures apply. Adoption may take place within a family. This kind of adoption sometimes is called a relative adoption. A stepparent who is responsible for providing the care, love, discipline, and guidance for the children of his or her spouse may formalize the relationship by adopting the stepchildren. As with any adoption, this can happen only if both natural parents agree. In California, it is possible for an adult to be adopted by another, older adult. Generally, parental consent is not required and there is no requirement of a study or report, unless a court orders such information in special cases. Open Versus Closed Adoption If the adoptive and birth parents know each other and remain in touch after the adoption, the adoption is said to be open. If they do not know each other and do not stay in touch after the adoption, it is said to be closed. Open and closed adoptions are not the only two options available to parents; they exist at opposite ends of a continuum of choices. The degree of openness in an adoption is determined by the parties involved and may be quite complex. Most important to a successful adoption is that all expectations regarding openness and the role both sets of parents will play are clearly communicated and understood by all parties. Adoption facilitators or attorneys can assist in ensuring the most secure adoption plan in the best interests of the child. Who May Adopt? Any adult in California may file a petition to adopt a child who is at least ten years younger than the petitioner. Commonly, married couples apply to become adoptive parents, although single and divorced people are not prohibited from adopting in California. California law as administered by agencies is quite flexible with regard to other qualifications. There is no particular age, housing situation, social background, or income level that makes certain people more qualified than others to be adoptive parents. Some people may be required to provide additional information to an agency considering their application. For instance, working parents would be required to demonstrate how child care will be provided. California's Department of Social Services provides various services to people wishing to adopt, such as listings of licensed public and private adoption agencies, independent adoption services and, in some cases, financial and medical assistance. Adoption Placements and Procedures An agency placement or relinquishment placement of a child for adoption is one made through a licensed county or private adoption agency. Under an agency adoption, the birth parent signs a document in which all parental rights are relinquished to the adoption agency. The birth parent may designate the adopting parents. Approximately two-thirds of all adoptions in the United States are arranged through agencies. In California, all agencies specializing in adoption are licensed by the Department of Social Services to provide specific types of adoption services. Even with these regulations, however, not all licensed agencies are equal. Agencies differ as to the services offered, adoptive clients served, geographic area served, fees charged, and age of the child to be adopted. When dealing with an adoption agency, it is best to ask questions to determine whether the needs of the adoptive parents and the birth parents are met by the services offered by the agency. When a birth parent places a child directly with the adopting parents, an independent adoption is said to occur. An independent placement is one arranged between the adoptive and birth parents without the assistance of an agency. In this situation, the parties have come together through other means--usually through mutual friends. However, even in the case of an independent adoption, the adopting parents must file a petition to adopt and must undergo many of the same procedures as in an agency adoption. Initiating an Adoption Before the adoption of a child can commence, the child's birth parents must voluntarily give up their parental rights by signing a document relinquishing all legal rights with regard to the child. Parental rights may also be involuntarily terminated: the parents are declared unfit by a court of law. For example, a court may find that a parent has abandoned the child, severely abused the child, or has shown such little interest in caring for the child that he or she is not competent to be a parent. Usually, however, when birth parents relinquish their right to raise a child, they do so consensually. The right to care for the child and make decisions on his or her behalf may be given over to an adoption agency prior to the child's placement with his or her adoptive parents. Generally, both birth parents must relinquish parental rights. The consent of the birth mother may not be obtained until after she has been discharged from the hospital after giving birth. The father's (or presumed father's) consent must be obtained if the child was born while the parents were married to each other or within 300 days of their divorce, if the child's parents attempted to marry, or if the father openly holds out the child as his own by receiving the child into his home. If none of these conditions exists, the birth father does not need to consent to placing a child for adoption. In California, as in all other states, it is illegal to buy a baby. Adoptive parents are prohibited from paying or offering anything of value to a parent for the right to adopt a child. This law does not prohibit adoption agencies or intermediaries, such as attorneys, from charging fees for their services. Also, most states, including California, allow the adoptive parents to pay for the birth mother's medical expenses related to the birth of the child, as long as paying the expenses is not contingent on the birth mother's consent to the adoption. Qualification Adoption agencies conduct a rather extensive examination of people who wish to adopt, to ensure that they are fit to do so. The agency assesses the child's needs and creates a record that includes a history and verification that the child is free for adoption. Agency workers perform a "home study," going into the potential parents' home to investigate that it is an appropriate place for a child. The adoptive parents are subject to an investigation of criminal, marital, medical, and employment backgrounds. The home study also includes an interview, the purpose of which is to ascertain whether the potential parents are ready for the responsibilities of parenting. Some of the issues covered in the home study include: * Is the house clean and safe? * Is there room for the child? * How long have the applicants been married? * Are both people eager to adopt? * Do the applicants have any experience with children? * Can they afford to have the child? * Will one parent stay home with the child or will they use day care? The goal of the interview and examination process is not to make sure the applicants have a lot of money, a big house, or a great deal of education. It is meant to verify that adoption is the appropriate choice for the couple and that they will be able to meet the specific needs of the child they are seeking to adopt. The home study also is an opportunity for the potential parents to obtain information from the agency worker and to have their questions answered. Even if people arrange an adoption independent of an agency, a public or private agency still must conduct an investigation and home study. Stepparent adoptions take place by way of a different procedure. A county clerk, probation officer, or another employee of a county welfare department makes a study and report about the circumstances of the adoption, and provides a consent form that the adopting parent and the parent relinquishing custody must sign. Finalizing the Adoption Once the applicants have been approved to be adoptive parents and to adopt a particular child, the child is placed in the home on a tentative basis. During this probationary period, the parents are required to file an adoption petition with the court. The agency then files a court report stating that the circumstances are favorable for adoption and recommending that the adoption petition be granted. If the tentative placement is successful, a court enters a final adoption order. At this point, the new birth certificate is issued, and the legal rights and responsibilities of parenting go into effect. A final order of adoption is--as its sounds--final. It may not be challenged by the birth parents or other parties (although the adoptive parents' fitness, if it became an issue, could be challenged in a separate court proceeding). Intercountry Adoptions As noted earlier, adopting a child from another country is regulated not only by California law but by federal law, as well. The INS determines, according to its guidelines, whether a person or couple is qualified to adopt, approves the child for adoption based on a number of factors, including country of origin and level of health, and ensures that all requisites for immigration to the United States are met. Usually, married couples qualify to adopt, although single adults over the age of 25 may qualify also. At least one of the adopting parents must be a United States citizen. Licensed adoption agencies provide services to assist people in adopting foreign-born orphans through the Intercountry Adoption Program. Although it is possible to adopt a child from another country independently, it is much better to go through an agency. Private agencies (public agencies do not facilitate intercountry adoptions) are experienced in avoiding the special problems that can arise when attempting to adopt in another country. Intercountry adoptions can be more expensive than domestic adoptions. In addition to travel expenses, INS fees, and fees for additional documentation, agency fees usually are higher, as are foreign court fees. Many people work with a foreign agency, as well, which is an additional expense. Intercountry adoptions also can be more difficult. The waiting period both before and after the adoptive parents qualify may be longer, and there is a greater risk of medical and social factors becoming problematic. All of this said, intercountry adoption is a perfect option for many people. Adopting a healthy infant may be a greater possibility in an intercountry adoption, because waiting lists for American-born infants are quite long. Also, many of the procedures for adopting a child from another country--such as home studies, investigations of the birth and adoptive parents, forms, fees, and court petitions--are not much different than the procedures required in any adoption. Other Adoption Services In addition to coordinating placement of a child with adoptive parents, most public and private adoption agencies provide other services to both sets of parents. Adoption facilitators may be available to provide personal assistance throughout the adoption, including facilitating communication between the parties. Directories, including photographs and background information, are maintained by adoption agencies. These lists are provided to assist the adoptive parents in choosing a child. Most agencies also maintain an attorney referral service, which can be an additional source for locating an adoption attorney. Counseling frequently is offered to support birth parents through the decision to place their child for adoption. Larger agencies may even have counseling for relatives of birth parents who have decided not to raise a child themselves. Many agencies provide classes about adopting, which are designed to educate people about adoption laws and procedures. Some classes are tailored specifically to the parents' or child's situation; information may be available about parenting a child of a different race, a child who is HIV-positive, or a child who has been abused, for example. Other classes may function almost like support groups, in which people wishing to adopt exchange information and experiences. Some agencies provide classes, counseling, or even financial assistance for adoptive parents after the home placement, or even after the adoption is final. Private and public adoption agencies and support groups in California are too numerous to list here. Interested people should contact one of the agencies below for additional information. Contact us today for help regarding your Adoption proceedings. Resources The Adoptions Branch of the California Department of Social Services offers free publications, including Adoption Assistance Program, Adoptions in California: General Information 1994, and Directory of California Adoption Agencies. Contact the California Department of Social Services, Adoptions Branch, 744 P Street, Mail Station 19-31, Sacramento, CA 95814, (916) 322-3778 or (800) KIDS-4-US (543-7487). The National Adoption Information Clearinghouse was established by Congress as an information center for consumers, professionals, and the general public. It is funded by the United States Department of Health and Human Services. While it does not provide information on or assist in specific adoptions, nor provide counseling, it does make referrals and publish numerous fact sheets and directories. For information on California adoptions, to order free publications such as Adoption: Where Do I Start?, Intercountry Adoption, or Open Adoption, or to purchase the National Adoption Directory (a listing by state of all adoption agencies), contact the National Adoption Information Clearinghouse, 5640 Nicholson Lane #300, Rockville, MD 20852, (301) 231-6512. GuardianshipsFor your matter involving conservatorship or guardianship, you deserve reputable, knowledgeable legal representation that enables you to make well-informed choices. For an attorney experienced with California conservatorship laws, Beyer, Pongratz & Rosen California. We work diligently to protect your rights and interests.
back to the topLitigationUnfortunately, disputes and disagreements are a fact of every day life: contracts are breached, people are injured and rights are violated. Often these disputes cannot be resolved without the help of an attorney. Regardless of whether you are dealing with a lawsuit, arbitration or mediation—or simply trying to resolve a dispute before a lawsuit is filed—the quality of your legal representation may be one of the most important factors in determining the outcome of your case.
Sexual HarassmentBeyer, Pongratz & Rosen aggressively represents victims of sex and gender based discrimination, harassment, and retaliation through negotiation, litigation, and trial. Sexual harassment in the workplace is forbidden under state and federal law. It is unlawful for an employer to require an employee to submit to sexually harassing conduct as a condition of employment, or to subject an employee to sexually harassing conduct that has the purpose or effect of interfering with the employee’s performance. It also is unlawful under federal and state law for an employer to give an individual less favorable treatment, less training, fewer job or promotional opportunities, or terminate or refuse to hire an individual on the basis of sex or gender. Additionally, employers may not discriminate against women on the basis of pregnancy, child birth, or related medical conditions. Women may not be retaliated against by employers for becoming pregnant or seeking reasonable accommodations for their pregnancy. Employment LawThe attorneys who practice in our Employment Law Department are keenly aware of and monitor the constantly evolving landscape of employment and labor legislation, regulation and caselaw. Our advice to clients incorporates knowledge and expertise in areas of the law that are continuing to develop. We not only respond to clients, but also reach out to inform clients of issues or matters that will potentially affect them. As a full service mid-size firm, we offer a more personalized relationship with our clients than is possible at larger firms. This enables us to act quickly, efficiently and aggressively in response to all of our clients' needs. Our goal is to learn about each of our clients' business goals and objectives and to use this knowledge as a foundation for the counsel we provide. back to the topDiscriminationMost states have discrimination laws that apply to companies with fewer employees – California discrimination law applies to companies with 5 employees and New York and New Jersey laws apply to one-employee companies. So in addition to becoming familiar with federal law, its important to know the state law of the jurisdictions where you do business. Equal employment opportunity means giving people a chance to succeed. It’s a law that codifies the fundamental principle of fairness. Sometimes we forget why certain laws were passed. The federal Civil Rights Act was originally proposed by President Kennedy in 1963. That year, civil rights activist Medgar Evers was murdered, and four young girls died in the bombing of a Birmingham church. That was the year of Martin Luther King, Jr.’s “I have a dream” speech at the March on Washington. In 1963 discrimination against African Americans and other minorities was rampant. They did not have equal education. When they did, they were not hired equally. When they were hired, they were not paid equally, they were not promoted equally and they were harassed. The law was introduced in Congress in 1963, but it languished there amid political debate. Then on November 22, 1963, President Kennedy was assassinated. Five days later, Lyndon Johnson gave his first address as President before both houses of Congress. He challenged Congress to pass the law as a ‘living memorial’ to President Kennedy. It passed within a few months, to become the Civil Rights Act of 1964. The law attempts to achieve equal employment opportunity for all by prohibiting discrimination. Since the Civil Rights Act new federal and/or state laws have been passed to afford protection under discrimination laws based on disability, medical leave, sexual orientation, and pregnancy. Indeed the ripples of the 1964 Civil Rights law continue to expand our horizon of what it means to provide equal employment opportunity for all. back to the topPersonal InjuryPersonal injury law is based in the law of "torts". A tort is a harmful act or failure to act for which the law provides a remedy. There are many different kinds of torts. Physically injuring someone is a tort; so is damaging a person's property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the "tortfeasor" (the person committing the tort) for damages. It is important to understand the difference between torts and crimes. A tort is a civil wrong against an individual that exposes the tortfeasor to liability to an individual (or individuals). A crime is a wrong against society or the state and is punishable by incarceration or a fine. Some acts, however, can be both a tort and a crime. For example, someone who uses force to cause bodily injury commits a tort known as battery and is liability to the victim for damages. Battery also is a misdemeanor crime under California law, punishable by up to six months in prison and/or a fine of up to $2000. Thus, a person committing a battery could be prosecuted and convicted of the crime of battery, and also face a civil lawsuit brought by the victim. Thre are three types of torts: o intentional torts, Each of these torts is unique and has its own requirements for recovery, but may overlap in application. For example, if a person is injured by a product, he or she may sue the manufacturer under a theory of negligence or strict liability. Intentional Torts: An intentional tort is a wrong based on an intentional action, as contrasted with carelessness or negligence. Battery is an example of an intention tort--the defendant intended to hit the plaintiff. Other examples of intentional torts include assault (threatening someone with physical violence), false imprisonment, invasion of privacy, and trespass. Defamation also is usually considered an intentional tort, because the defendant intentionally prints or speaks the defamatory statement. To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that the defendant acted willfully. To act willfully means to deliberately, intentionally, or wantonly perform an act with actual or constructive knowledge that injury is a likely result, coupled with conscious failure to act to avoid the injury. The defendant's willful act must be the cause of the plaintiff's injury. Negligent Torts: Negligence has to do with how careful a person was when he or she caused an injury, and how careful, according to the law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect the plaintiff from unreasonable risk, (2) the defendant breached that duty, (3) the defendant's breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages In some personal injury cases, it turns out the plaintiff was partly at fault in causing his or her injury. In 1975, California adopted the doctrine of "comparative negligence", which allows a jury to apportion liability in a lawsuit. Comparative negligence permits a jury to compare the negligence of the plaintiff with the negligence of the defendant and decide damages accordingly. If the jury finds the plaintiff ten percent negligent in a car accident, and the defendant 90 percent negligent, the defendant has to pay only 90 percent of the damage award. Likewise, if the jury finds the plaintiff 90 percent negligent in the accident, and the defendant ten percent negligent, the defendant has to pay only ten percent of any damage award. Strict Liability: Under the theory of strict liability, the plaintiff contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. Even if a defendant's actions were entirely reasonable, strict liability imposes liability on the defendant if he or she caused the plaintiff's injury. Historically, strict liability was only used in cases in which a wild animal or an ultrahazardous activity caused an injury. For example, people who demolished buildings, dusted crops, or manufactured explosives were automatically liable for injuries caused by their activities. In 1963, strict liability was first applied in a defective product context. Since then, it has become the principal theory of recovery in products liability cases. One reason for applying strict liability to defective product cases is that manufacturers (often large corporations) are in a better position to incur the costs of the injuries caused by their products than the individuals who are injured. Moreover, by requiring manufacturers to pay damages for injuries caused by their products, regardless of fault, the law encourages manufacturers to produce safe and dependable products. The principal purpose of products liability litigation is to compensate persons injured by defective products. But products liability litigation also serves an important public policy interest. It serves as a means for society to collectively decide how safe manufacturers ought to make products that consumers use every day. The application of strict liability in products liability cases demonstrates society's changing attitudes toward product-related injury. To prove a case based on strict liability, three basic elements must be established. A plaintiff must show (1) the product was defective, (2) the defect was the proximate cause of the plaintiff's injury, and (3) the plaintiff suffered damages. Burden Of Proof: A plaintiff in a civil lawsuit has to prove his or her case "by a preponderance of the evidence." In other words, the plaintiff must show that a majority of the evidence establishes that the defendant is liable. This is different from the burden of proof in a criminal case. In a criminal case, the prosecution must prove the defendant's guilt "beyond a reasonable doubt"--a much higher standard. When a tort is also a crime, the results from the civil and criminal cases do not have to be consistent; in fact, the outcomes frequently are contradictory. Because the criminal burden of proof is higher, a defendant may be acquitted of committing a crime, but liable in a tort action. Affirmative Defenses: A defendant who asserts an affirmative defense does not deny the evidence against him or her, but argues that there is some other reason that he or she should not be liable. In the tort context, an example of an affirmative defense is comparative negligence. Assumption of risk also is an affirmative defense. The doctrine of assumption of risk states that, because the plaintiff was aware of the potential for injury and proceeded nonetheless, the defendant's liability should be reduced, if not erased altogether. Because California follows the doctrine of "pure comparative negligence", which allows a plaintiff to recover damages even if his or her share of fault is greater than 50 percent, the defense of assumption of risk has very limited application. Vicarious Liability: Vicarious liability is a legal principle under which one person is held liable for the tortious act of another, even though the first person was not involved in the act, did nothing to encourage the act, and even may have attempted to prevent it. The most common form of vicarious liability occurs in the area of employment. An employer is liable for any tortious act committed by an employee acting within the scope of employment. Another application of vicarious liability is to bar owners or others who provide alcohol to a person who then commits a tort. Under California law, anyone who sells, furnishes, or gives alcohol (other than in a social setting) to an obviously intoxicated minor may be liable for damages caused by that minor as a result of intoxication. Joint And Several Liability: In cases in which two or more defendants were found responsible for a plaintiff's injury, the law traditionally made the defendants jointly and severally liable for damages. In other words, a plaintiff had the right to collect the damage award from any defendant individually or from the defendants as a whole, depending on the plaintiff's preference. The California legislature has decided that the doctrine of joint and several liability resulted in inequity and injustice to defendants who bore only slight responsibility for an injury but had to pay the entire damage award. (These defendants sometimes are referred to as having "deep pockets.") Thus, liability for noneconomic damages is several only in California, and not joint. That is, while defendants may be jointly and severally liable for economic damages, each defendant is only liable for the amount of noneconomic damages directly in proportion to that defendant's percentage of fault. Noneconomic damages compensate for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of consortium, and injury to reputation. Statute Of Limitations: There are limits on the time period in which a lawsuit can be filed. If a person fails to file a lawsuit within the time period prescribed by the statute of limitations, the person loses the right to file that lawsuit. As of January 1, 2003, the statute of limitations for most personal injury claims was extended from 1 to 2 years. It is unknown whether claims existing before the new law came into effect have their periods extended. To be cautious, assume any personal claim arising before January 1, 2003, has a 1-year statute, and any claim arising as of January 1, 2003, has a 2-year statute. General Procedural Outline: No two cases are alike and procedures vary with the nature and complexity of the legal and evidentiary issues involved. The following is a very general outline of the stages of a civil action. Complaint Filing Service Of Complaint Response To Complaint Hearing Of Challenges To Sufficiency Of Complaint
(If Applicable) Discovery o Interrogatories: Written questions which
must be answered under oath. Discovery Motions (If Applicable) Trial Setting Settlement Negotiations Trial Wrongful TerminationAn employer may not fire, demote, harass or otherwise retaliate against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. An employer may not retaliate against employees for filing workers compensation claims, attending jury duty, responding to a subpoena to testify in court, or supporting a particular political party or candidate.
back to the topCriminal MattersCriminal law addresses the government's prosecution of individuals who have committed an act classified as a crime. Federal, state, and local governments codify crimes and prosecute criminals. A prosecuting attorney represents the people of a particular jurisdiction, and acts on behalf of the government by bringing a case against an accused.
Family LawBeyer, Pongratz & Rosen is a results-oriented law firm also practicing in the area of Family Law, including complex divorce and family law matters. The law firm currently serves the greater Sacramento area and Placer County. The firm's representative clientele include business executives and high-net worth, individuals; through its use of associate attorneys and paralegals Beyer, Pongratz & Rosen also provides service to a broad range of individuals. The services that the firm provides include divorce, division of marital property, custody, interstate disputes, visitation, parental rights, support, palimony, high-asset marital dissolution, business valuation, post judgment modification of orders, alimony maintenance, support, and pre/post nuptial/marital agreements. The practice of family law can be complicated and all-encompassing. Beyer, Pongratz & Rosen's lead litigators are California experts in family law and is experienced in complex family law and divorce matters. He has been awarded the highest rating of "AV" from Martindale Hubble, the premier attorney rating system in the Nation and he is a Certified Family Law Specialist so certified by the Board of Legal Specialization, State Bar of California. In Beyer, Pongratz & Rosen's more than seventeen years of California legal experience we have handled a broad range of legal matters related to family law through out Sacramento County. These areas include business valuation issues, litigation, estate planning, employment, finance and tax issues. He has taught family law, has written one of the most comprehensive family law textbooks in the state of California, and has written a guide book for other attorneys who are studying to become California Certified Family Law Specialists. Beyer, Pongratz & Rosen leads a team of attorneys who are effective negotiators and skilled litigators who work well together in a cohesive manner. The firm limits the number of cases it accepts, finding that selectivity advances the firm's commitment to excellence. Part of the Beyer, Pongratz & Rosen attorney team approach is to meet regularly as a group to strategize on case management, discovery plans and case advancement in order to keep the matter moving forward towards a successful resolution. Clients are not billed for group strategy meetings; rather, the law firm uses these meetings as a valuable in-house tool for maintaining a high quality practice. We use our extensive experience to analyze your situation and develop solutions tailored to your specific needs. Our skills in untangling legal and financial intricacies help protect our clients while we advocate assertively in their best interest. Throughout the representation the attorneys perform an on-going cost/benefit analysis, keeping you apprised of the costs of litigation to enable you to continually maximize your resources and place you in a position to make reasoned decisions. The firm's lawyers believe in managing and preserving your family's assets rather than wasting them on excessive legal expenses. Beyer, Pongratz & Rosen's attorneys regularly attend continuing education seminars in Sacramento and other counties within the state of California to stay abreast of new developments in the family law arena and those areas affecting divorce, including taxation, business valuation, high-asset marital dissolution, international Hague Convention disputes, estate planning and intellectual property. The firm also has technology in place to help the attorneys stay fully up to date on new California divorce case law and strategies to handle your complex and critically important issues. The law firm of Beyer, Pongratz & Rosen is known throughout southern California for its skilled, effective, well-crafted, and refined factual presentations. Each attorney in this firm is articulate, business savvy, a writer and a litigator, this combination makes a formidable force of divorce attorneys. We understand the intricacies of family law. We have the talent to negotiate the results you deserve and the ability to obtain those results through legal advocacy when necessary. Beyer, Pongratz & Rosen has been an active part of the Southern California legal community for more than forty years. This firm can compete head to head with the nation's best legal advocates. The firm has drawn upon its years of business longevity and experience and has kept pace with contemporary work force technology (Click Here). Beyer, Pongratz & Rosen's state-of-the art computer network, on-line legal research databases, voice over internet protocol phone system, high speed internet access, voice activated transcription systems and flat screen presentation television, all translate into efficiency and cost savings for you. The attorneys are connected to the office through wireless networks, so they are able to respond to clients needs outside of office hours and on weekends when necessary. Beyer, Pongratz & Rosen also works with an extensive network of experts through out Sacramento and California in the fields of forensic divorce accounting, financial sector planning, fund management, investment banking, corporate law, divorce tax planning, real estate and business valuation appraisers, retirement-pension plan specialists, QDRO attorneys, psychologists and child custody evaluators.
The attorneys at Beyer, Pongratz & Rosen are also sensitive, discreet and non-judgmental when it comes to the numerous issues or causes surrounding a divorce. We have office procedures and polices in place to help protect client confidentiality. Where children are involved, Beyer, Pongratz & Rosen also pledges to view your children with the utmost importance, regardless of which parent brings the case to court, and to practice with your children's best interests in mind at all times. Your divorce is more than simply a matter of dividing assets-it is a critical decision with a tremendous impact on your life, as well as those around you.
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3230 RAMOS CIRCLE, SACRAMENTO, CA 95827 PH:916.369.9750 FX:916.369.9760 417 F STREET, LINCOLN, CA 95648 PH: 916.645.9529 FX: 916.645.5550 |
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