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Eviction steps January 24, 2010

Posted by rkoman in Uncategorized.
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Can a landlord sue for unpaid rent after eviction is complete? January 10, 2010

Posted by rkoman in Uncategorized.
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This is a question of immediate concern to me. I’m representing a client in a small claims action in which the former tenant is being sued in small claims court for rent. Can the landlord sue for rent for the time period after the landlord terminated the tenancy? Here’s the story:

The landlord served a 60-day notice on my client. She paid rent through the notice period and attempted to pay past the notice period. (These payments were returned with a note from the landlord’s lawyer, stating “no further payments may be received since the tenancy has terminated.”) The case was settled with a mutual release, which should bar the landlord from suing in small claims court, and a waiver of the security deposit law (Civil Code 1950.5), which would seem to bar my client from making a counterclaim for violating that law.

So, the release aside, can a landlord sue a tenant for rent after the notice expires? The answer appears to be: only if the tenant failed to pay rent or otherwise breached the lease — not in a no-cause eviction.

In Guiras v. Harry H. Culver & Co. (1930) 109 Cal.App. 743, 744 [293 P. 705], the court stated: “It has long been the settled law of this state, that while re-entry by the landlord and his resumption of the benefits, use and enjoyment of the premises terminates the lease, so far as the landlord’s right to rentals subsequent to such entry is concerned, this does not affect the tenant’s liability for rent accrued prior to such re-entry.”

This seems to indicate that the landlord’s right to collect rent terminates when the lease terminates, the common law rule. An exception is created by Civil Code 1951.2(a), which allows a landlord to recover future rent when the tenant breaks the lease. In other words, when the tenant breaks the lease (by not paying or otherwise) the landlord can recover rent for the remaining lease period (even though the tenant has vacated), less mitigation.

Do I have this right?

Some basics of eviction law in Sonoma County (and anywhere in CA not rent-controlled) January 10, 2010

Posted by rkoman in Uncategorized.
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Landlord-tenant law is actually a fairly technical area of law. In non-rent-controlled areas like Sonoma County, the law clearly and decidedly favors landlords. The law wants landlords to be able to regain possession of their property if a tenant isn’t paying the rent or is otherwise abusing the agreement by which they are in possession. But the trade-off is that landlords are held to very specific requirements to obtain that eviction.

Specifically, eviction notices must follow specific rules, complaints must state facts in strict accordance with leases, court documents must be served properly, and so on. Here are a few notes on notices:

(more…)

Where are you in the business life cycle? January 3, 2010

Posted by rkoman in Uncategorized.
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Every product and to some degree every service runs through a lifecycle – Introduction, Growth, Maturity, Decline. Depending on where you are in your company’s lifecycle, you’ll need different services from your attorney. A few of the highlights:

  • Introductory (start-up) phase. Lawyers can help define and set up compensation schemes for founders and early employees; identify, define and protect intellectual property rights; manage and define joint ventures. (The rumored iSlate from Apple
  • Growth phase. Lawyers can negotiate favorable leases, supplier contracts and sales contracts, and maintain control over distributors and franchisees.
  • Maturity phase. Attorneys’ work in this phase tends more to employment issues (since there may be a lot of employees), product liability (since there are lots of products out in the market), licensing and, as always, defending intellectual property.
  • Decline phase. Here, lawyers will help with exit strategies – selling off the business, avoiding long-term commitments and encouraging development of new products and variations that will let the cycle start all over again.

As you can see, it makes sense to fully integrate your attorney into your business management so he or she can see where your business is in the life cycle and help you act accordingly.

For more on this widely accepted model, see this article from NetMBA. Or just try Google.

Case of the Month: Wildfire Stables January 3, 2010

Posted by rkoman in Clients & Cases, Tenants.
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Wildfire Stables in Bodega Bay had a problem. Having relocated a string of 10 horses from the Central Valley to Chanslor Ranch, owner Chari Harrill was facing eviction. But it wasn’t a straight-forward eviction. Far from it. After promising Harrill that her future was secure at the ranch and inviting her put in long hours supporting the ranch’s other businesses, the ranch owners’ agent decided that she wasn’t growing the horse business fast enough and filed an unlawful detainer action against her. After pushing the action off for about two months, we ultimately settled the case, giving her time to relocate the operation and make back-rent payments on an extended schedule. Here’s what Chari has to say:

Our case wasn’t small, stacks of paper work and an unethical opponent. Yet, Richard managed to get us the desperately needed time and was able to sort through the multi-level facts of our situation. Not an easy task and we appreciated the effort, understanding, and intelligence it took to accomplish that. Definitely would recommend this attorney to anyone.‎

Understanding your marketing strategy January 2, 2010

Posted by rkoman in Small Business.
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At the highest level, there are three basic Marketing Strategies. Most companies will only be able to pull off one of these. Certainly most small business should only attempt to pick of them. It takes a lot of expertise to be able to operate two of these at the same time. No one can do all three. If you don’t understand what strategy your business is following, you have a problem. Do customers come to you because you:

  • Offer efficiency? (Variety at low prices)
  • Offer high quality? (Charge a premium for premium products or services)
  • Offer customer intimacy? (Customized to individual consumers)

These things tend to make more sense in thinking about the famous brands and what they would have been like as start-ups.

Walmart – Highly Efficient. Walmart offers lots of choices at the low end. It is famous for its operational efficiency, squeezing every penny out of its vendors and frankly its employees. So what you will, the marketing strategy is clearly on efficiency. It offers variety at low prices. It’s a volume business. It knows how to buy, distribute and sell at huge volumes. It doesn’t offer high quality products and it certainly doesn’t offer intimacy. Starbucks seems like another company that makes profits though huge volumes and operational efficiency. It’s not the best coffee in town (although it’s better than some) and it’s not an intimate experience.

Apple – High Quality. In the technology world, I think of Apple as a high-quality provider. Their products are simply better than almost any other computer seller. They’re beautifully designed, well built, they offer pretty great customer service. You pay a premium to buy a Mac or an iPhone, no doubt about it. They’re too big to truly offer intimacy but through the Apple Stores and AppleCare, most customers feel like they can get personal attention, so they straddle quality and intimacy, in my opinion.

At the other end of the spectrum, Dell is definitely an efficiency-oriented company but they also originated the ‘Build Your Own Computer’ model, which is basically customization. At the end of the day, that feature doesn’t really go to intimacy though but to efficiency. An intimate computer company?

Your Lawyer/Tailor/Doctor/Organic Farm/Etc. – Intimacy. No brand-name company can truly offer customer intimacy. For that  you have to be a local provider, who can meet and understand your client’s needs and problems. If you want a tailored suit, you have to go in person to your local tailor, who has to take the time to measure you, then cut and hem your suit exactly to your proportions. In the law, you could go to one of the bankruptcy mills, where you get a lower price but zero personal attention (efficiency-centered company), or you could see a local bankruptcy attorney and get personal attention. Depending on your needs you might pay a premium to go to a expensive lawfirm (quality) but if your needs aren’t that complicated it might be better to a less-expensive but perfectly competent attorney (intimacy).

For small businesses, we don’t have the scale to operate a high-volume, low-margin business. We’re either going to charge a premium for a superior, niche service, or going to provide excellent customer service and a customized experience. I recently had a conversation with someone who was interested in copying a business “that used to be in Healdsburg” — selling relatively low-cost imported fair trade items from the developing world. The operative words were “used to be.” Why is that?

Because they were selling low-cost items, they simply had to do serious volume for the business to make sense. Selling low-margin items at low volumes just won’t cover the rent. Without volume, this business has to either be selling quality items at a substantial premium (think Gado-Gado in Santa Rosa’s Railroad Square) and the inexpensive things are loss-leaders to get you in the store — or they’re providing great customer intimacy (as part of an interior design business, they sell items as accents – essentially give-aways. That sort of thing.

So, Sonoma County small businesses … are you a quality seller or an intimate seller?

Should your lawyer think like an MBA? January 2, 2010

Posted by rkoman in Small Business.
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For more information, visit my site at richardkoman.com

I’m listening to a California Education of the Bar program on how lawyers can “think like an MBA.” Is this a good idea? The typical split is that businesspeople see opportunities to be exploited and lawyers see risks to be avoided. This can mean that too often lawyers put the kabosh on business ideas because they are so highly attuned to the legal risks. On the other hand, business people need their counselors to keep their enthusiasm in check – at least until all the risks are understood.

My interest is in helping small businesses succeed. That means providing legal counsel that supports the creation of opportunity and growth, not just drafting an LLC or a contract. One of the lawyers on the panel told of a company that discovered one of their warehouse workers was an illegal immigrant. The company was in the middle of a tight-deadline warehouse move.  The law firm insisted on a full audit before the move. When the audit revealed that 85% of warehouse employees were illegals, the lawyers insisted they all be fired, despite the fact they were in the middle of a critical move.

The better approach: Fire the one known illegal, complete the move, THEN do a full audit of the employees. Deal with legal risks but not at the cost of critical business functions. More to the point: Where were the lawyers when the managers were hiring illegals willy-nilly? Where were the practices and procedures that could have averted this situation in the first place?

A small business is not going to be able to handle all of the legal protections they would in an ideal world. The emphasis will be on innovation and product development, not paying lawyers to copyright and patent everything in sight. It’s natural that problems only get dealt with when they become problems. But it’s a good idea to meet with your lawyer and review all of the issues (many of which the small businessperson may not be aware of) that will have to be addressed over time.

These include exit strategy, planning for growth, marketing issues (false advertising, etc.), employment issues and intellectual property protection.

Gross habitability violations in Petaluma January 2, 2010

Posted by rkoman in Clients & Cases, Tenants.
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Posted by Richard Koman, Attorney at Law, richardkoman.com

We’re expecting to file for default judgment against a landlady in Petaluma, (Sonoma County, Calif.), with half a dozen houses in various states of dilapidation. Our client is a woman for whom the ceiling literally caved in. It started with a dripping ceiling, progressed to the ceiling cracking, water dripping through the light fixture and ultimately the ceiling completely fell away, exposing plumbing and electrical. The water damage destroyed thousands in personal property. When City inspectors showed up, they ordered the tenants out of the house, red-tagged the unit and issued a list of about 20 violations that made the house uninhabitable.

We are seeking punitive damages in this case, on facts I’ll write about after we file. I’ll post the documents when they become public records.

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