California Business Litigation Attorney Blog

July 22, 2012

Addressing ADA Issues in Commercial Leases in California

Recently, California courts have been overwhelmed with lawsuits brought under the Americans with Disabilities Act (ADA) and Unruh Civil Rights Act. Unfortunately, many commercial leases are drafted without addressing the critical issue of how the parties will comply with the ADA or who will absorb the cost of an ADA lawsuit. It is up to Landlords and Tenants to secure competent real estate lawyers to assist them with these issues. Although there are bipartisan attempts in Sacramento to reduce rampant ADA lawsuits, the most recent proposed legislation, SB-1186, has been modified and does not appear to have sufficient substance to provide relief for small businesses in the near future.

Addressing ADA Issues in Commercial Leases. The ADA obligates anyone who “owns, leases (or leases to), or operates” a “place of public accommodation” to make sure that place or premises complies with ADA guidelines. The question then becomes, who will have the burden of paying for compliance? It is important to allocate the burden in the lease. If it is a “gross” lease, the landlord will probably be responsible for the structure and building, however, if there are issues that are solely within the tenant’s control (such as placement of furniture), the tenant should still be responsible. Nevertheless, if the lease does not clearly allocate responsibility, problems will arise. At a minimum the lease should include a statement as to whether the property and the project in which it is located complies with the ADA, who will be responsible for retrofitting if it is required, and how the cost of compliance will be allocated. If the lease calls for Tenant Improvements and includes a Work Letter, ADA issues should be addressed in the Work Letter.
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July 12, 2012

How to Avoid Being Sued For Improper Debt Collection Practices

by Adina T. Stern, Esq.

Debt collection in California is tricky. It is never worthwhile to try to harass or embarrass a debtor into paying a debt. There are a myriad of laws protecting debtors and even though your debt is legitimate it is best to consult with a business lawyer to make sure your debt collection practices will not expose you to liability so that you wind up owing your debtors money. The laws that apply to debt collection in the business world apply equally to debt collection in the horse industry. While each case may vary, it is best to avoid these types of debt collection practices:

Discussing a Debt with Third Parties. Generally speaking, it is best to discuss a debt only with the debtor or the debtor’s lawyer. Under the Federal Fair Debt Collection Practices Act, and the Rosenthal Fair Debt Collection Practices Act, communications with anyone but a debtor or a debtor’s attorney is prohibited. The publication or posting of “deadbeat lists” not only can violate the California and Federal laws listed above but they can also give rise to an action called known as “Public Disclosure of Private Facts.” (See California Civil Jury Instruction 1801). Similarly, comparing notes with other vendors, “black-listing” a client, or other public humiliation tactics expose you to the risk of suit if they result in damage to the debtor. Even mentioning the debt can be risky. Further, if the information you convey is not completely accurate you also face the possibility of being sued for defamation. You may not communicate with the debtor’s employer or trainer or any horse show or horse association regarding the debt unless you are specifically authorized to do so by law or by a written waiver from the debtor. While you are not obligated to continue providing services, you do not owe anyone an explanation and a statement such as “they owed me money” can be enough to get you sued if you then caused the debtor damage. The best answer is “it is a private business matter” and leave it at that.
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July 2, 2012

What is Defamation? The Basic Elements of Slander and Libel.

by Adina T. Stern, Esq.

Last week in United States v. Alvarez, the United States Supreme Court struck down the “Stolen Valor Act” which made it a crime to lie about receiving a military decoration or medal. The court recognized that a lie, in and of itself, is protected by the First Amendment unless it creates some “legally cognizable harm.” One of the types of “legally cognizable harm” recognized by the court was defamation. In California, the rules on defamation change depending on whether the defamed individual is a public figure or a private figure and it also depends on whether the lie is about a matter of public concern or private concern. As a business law litigation attorney, most of the defamation cases I deal with involve private figures who are defamed about private matters. Most of our cases arise in a business context where two parties have a dispute and then tell others about their point of view.

The elements of this type of defamation action can be found in the California Civil Jury Instructions. First, the statement had to be made to a person other than the Plaintiff. In other words, it is not defamation to tell someone a lie about themselves. If some one writes a letter addressed to you personally telling you that you cheated them on a real estate transaction, that alone is not defamation; the statement had to be made to someone else. However, let’s say you are in a crowded elevator and someone loudly shouts defamatory statements to you. Since the statement was heard by others, that may satisfy this requirement.
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