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Questions Answered by Donald M Barker
1 Answer | Asked in Contracts and Landlord - Tenant for California on
Q: I have a tenant who only gave a 10 day notice to leave and she wants to keep the key with her

Hi, before signing a contract with this tenant, she asked if the contract could be till mid March. I said no, I can only do till end of April. So she agreed and signed the contract. She gave me a 10 day notice that she’s leaving, I told her that’s not okay and that she either finds someone to... Read more »

Donald M Barker
Donald M Barker answered on Mar 11, 2020

Assuming no other "Issues," in your situation, a tenant must pay rent when called for in the lease. If the tenant fails to pay, then you must serve a "Three-Day Notice to Pay or Quit." If she pays, life is good. If she does not, you have to file with the court and serve her with an Unlawful... Read more »

1 Answer | Asked in Foreclosure, Contracts, Real Estate Law and Construction Law for California on
Q: GC filing small claims 4 nonPmt of $10K. Defense argues improper HI contract. How do I find case law that backs me?

2 bathrooms 95% complete (punchlist, barn doors and faucets left). Materials were not in yet (this was the 2nd or 3rd time we were waiting on her), but temps were installed. Left job for 2 weeks due to previously scheduled out-of-town job. Client fired us and refuses to pay for the 2nd bathroom or... Read more »

Donald M Barker
Donald M Barker answered on Mar 10, 2020

"Substantial Performance" is the term you seek: "I ordered 100 flowers and you only brought me 95. I am not paying you." If a party "Substantially Performs" terms of contract, then payment is due, but payment may be prorated fairly.

Here's a link to the CA Jury Instruction, and all kinds...
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2 Answers | Asked in Employment Law for California on
Q: DOES TRAVEL TIME NEED TO BE PAID AS OVERTIME IN CALIFORNIA

We sometimes pay our employees an hour of travel time for commuting during high traffic time around Los Angeles. I do not believe we are required to because it is generally under 40 miles one way. However, in LA traffic that can mean 4 hours of drive time round trip. How can we pay them for that... Read more »

Donald M Barker
Donald M Barker answered on Mar 5, 2020

CA Lab Law is employee-favorable. The risks and penalties for a labor violation can be drastic. Take the safe route (Pun intended) and pay employees for drive time, even if it results in overtime.

If you do not, and you violate a Lab. Law, one disgruntled employee can result in an Audit of...
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1 Answer | Asked in Libel & Slander and Employment Law for California on
Q: What is the process and how long should a libel suit take?

In California a former employee is suing my business for disparaging remarks made on social media that were not made by myself or any current employees, it was posted by an social media account that only existed to post said comment in a random group. I have retained the services of an attorney but... Read more »

Donald M Barker
Donald M Barker answered on Feb 25, 2020

Court's routinely schedule "Case Management Conferences" and "Status Conferences." The attorney usually appears by telephone.

Go to this website, check "I accept" at bottom. Search with your Case number, and you can see every hearing held, scheduled and every document filed in your case....
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1 Answer | Asked in Construction Law for California on
Q: What penalties, if any, are there for an unlicensed contractor working at a senior care home?

In the state of California, if you are an unlicensed contractor who is hired by and performs work totaling over $500 at a senior citizen residential facility, are there any specific penalties beyond being unlicensed because it is a senior living home?

Donald M Barker
Donald M Barker answered on Feb 24, 2020

I am unaware of any additional "penalties" for performing works of improvement without a proper license on a Senior Care Facility.

HOWEVER, regardless of the nature of the property/facility, here are your Bigger concerns:

First, you cannot legally collect any monies owed from a...
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1 Answer | Asked in Construction Law for California on
Q: When are you supposed to sign a stop notice release ? Before or after you get paid ?
Donald M Barker
Donald M Barker answered on Feb 20, 2020

After or simultaneously when the payment on the Stop Notice is "Honored," i.e., check clears your bank account or you have cash in hand. NEVER release before payment. If obligor on Stop Notice "all of a sudden" finds a problem with your work or services after you sign the Release but before... Read more »

2 Answers | Asked in Employment Law for California on
Q: Should I be making $26/ hr as an exempt employee?

CA minimum wage went up to $13/ hr Jan 1, 2020 for companies with 26 or more employees. My branch does not have 26 employees, but there are well over 26 employees nationwide. I’m an exempt employee making $49,920 a year ($24/ hr). HR has told me I do not fall under the designated threshold.... Read more »

Donald M Barker
Donald M Barker answered on Feb 20, 2020

Yes, based on your "Facts," you are correct. However, whether you are an "Exempt" employee may be in issue. There are a few requirements for exemption from overtime, as as a "Management" Employee, beyond the double mim. wage requirement.

Re "Exempt" status, see: Labor Code, § 515, et...
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3 Answers | Asked in Civil Litigation, Collections, Consumer Law and Small Claims for California on
Q: Could a debt collector try to collect on debt that is 8yrs and that was included in a bankcruy?
Donald M Barker
Donald M Barker answered on Feb 12, 2020

He can "Try" all day long. However, due to the BK and most likely the Statute of Limitations on collecting original debt, he has no legal standing to collect via judicial proceedings.

Send him a "writing," instructing him not to contact you again, and he must stop, by law.

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1 Answer | Asked in Employment Law for California on
Q: I am 1 of 2 employees for a real estate broker in San Diego. I am an exempt employee. I am not a licensed RE agent.

Per my contract, I receive $3,500 per month salary through a payroll company. I also receive 8%-10% of my employer’s commission which has been paid via 1099 since I started years ago. My tax lady said this is wrong because I should be getting paid through payroll for the 8-10% I receive. My... Read more »

Donald M Barker
Donald M Barker answered on Feb 11, 2020

Many possible issues with your payroll arrangement. Without more facts, it's hard to determine the specific issues. However, the Employer is most likely in Breach of your Employment Contract, as I doubt the Contract contemplates any deductions from your pay for Employer payroll costs.... Read more »

3 Answers | Asked in Business Law, Civil Litigation and Personal Injury for California on
Q: can an employee be sued along with the corporation for negligence after he acting within course and scope?

If not, then is a demurrer and/or motion to strike appropriate?

The employee performed his duties of evaluating a company. The company did not like the evaluation and sued the corporation and the employee after an insurance company denied the claim.

Donald M Barker
Donald M Barker answered on Feb 6, 2020

Yes, you can be sued employee for causing personal injuries, even though your "Negligent" actions occurred while you were working as an "Employee." Your relationship with your employer is only relevant as to the duties and obligations between you two, not the injured person. Of course, the injured... Read more »

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2 Answers | Asked in Contracts for California on
Q: Am i legally bound by signing a contract w a dental office to pay for services that i never recieved?

I paid cash in full for 2 crowns, however the dentist ordered 2 different color crowns on my front teeth. After 3 months of having to wait for these crowns i decided to get them done by a different dentist. It took 6 days. The first dentist has declined to reimburse me the $3000 i paid in advance.... Read more »

Donald M Barker
Donald M Barker answered on Feb 4, 2020

The Dentist had an obligation to provide two Crowns to you. If the crowns provided did not conform with the crowns called for in the "Agreement," like "Wrong color" and the Dentist did not/could not/ would not correct the problem ("Cure his breach") within a reasonable time, then the Dentist most... Read more »

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2 Answers | Asked in Employment Law for California on
Q: Can California employer have a policy that forfeits earned and unused PTO when switching from full time to part time?

Former Employer is refusing to pay out unused earned PTO because I was ineligible to receive vacation benefits after switching from full time to part time. I totally understand not accruing additional hours upon the reclassification, but I’m not sure if it’s legal to have a policy of forfeiture... Read more »

Donald M Barker
Donald M Barker answered on Feb 1, 2020

Once earned, it's yours.

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2 Answers | Asked in Small Claims and Civil Litigation for California on
Q: When a.tow company has your vehicle and its yard, are they responsible for keeping your vehicle and its contents secure

My RV was towed because they've been in the same spot more than 72 hours. The tow company who is contracted with the police department has it in their locked yard. it has been broken into ransacked and a bunch of personal belongings have been stolen. My question is is the tow company liable for my... Read more »

Donald M Barker
Donald M Barker answered on Jan 27, 2020

Yes, if the Tow Yard knew, or should have known, of a risk to property in its control/possession, or if Two Yard failed to take "Reasonable" steps in storing a vehicle, the Tow Yard may be liable.

Reasonable: Locking vehicle inside locked/gated tow yard--Unless prior knowledge of theft in...
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2 Answers | Asked in Employment Law for California on
Q: What is the minimum wage for employees who work at a small business of fewer than 26 people in Californa
Donald M Barker
Donald M Barker answered on Jan 27, 2020

It varies by County:

https://www.laboremploymentlawblog.com/2019/06/articles/minimum-wage/increases-california/

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2 Answers | Asked in Civil Litigation for California on
Q: Is it common for a plaintiff to lose a case when the defendants nor their attorneys appear for a scheduled demurrer.

During a scheduled Demurrer hearing, the Plaintiff's were live via a Court-Call hookup. The Plaintiff's waited for 54 minutes for the Defendants or their attorneys to appear, neither did. This 54 minute wait included the judge having the Plaintiff stand by to see if Defendants showed up.... Read more »

Donald M Barker
Donald M Barker answered on Jan 21, 2020

The Court's Ruling on the Motion was made long before the Hearing. Courts generally follow substance over form. Though Defendant did not show up, he did file a written Motion (Substance).

Unfortunately, you failed to file an Opposition.

Cal Rules of Court, R. 8.54. Motions:...
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3 Answers | Asked in Employment Law and Employment Discrimination for California on
Q: I worked at a mimi market in Keizer for the last year and it's been a nightmare lots of laws broken

Like never got a paystub didn't get paid for training didn't pay me for times I worked took money out of my check for register being short when there was more than one person in the register manger would get in my face and yell at me infront of customers and when I finally had enough after i finaly... Read more »

Donald M Barker
Donald M Barker answered on Jan 20, 2020

"...what are my legal options."

Countless. See an Employment Lawyer.

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1 Answer | Asked in Contracts and Landlord - Tenant for California on
Q: CA- how to request case dismissal with prejudice against plaintiff due to flawed 3 day notice? Can I amend answer to UD

CA-Received flawed 3 day notice (other tenant/m girlfriend) not named ,rent amt incorrect + late fee and utilities listed. I filed answer to UD but want to amend. Can I, if done within 10 days? Which forms to use, how to cite the flawed notice to get judge to dismiss? Should I still file answer... Read more »

Donald M Barker
Donald M Barker answered on Jan 20, 2020

If you do not have the funds to pay all rent due, you're essentially whistling past the graveyard. Though an incorrect Three-Day Notice, etc., may delay your eviction, it will not stop it: You are only buying time.

Plus, to the extent that your Agreement with the Landlord contains an...
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1 Answer | Asked in Contracts for California on
Q: The contractor with whom we concluded the contract did not pay the workers. Can they put the lien against our home?

Most of the work was done disgustingly, with a lot of obvious flaws, and we demanded to redo everything.We have already paid the contractor 70% and demanded to fix all the problems before he receives the rest of the amount.After that, he disappeared, did not answer my calls and emails.

I... Read more »

Donald M Barker
Donald M Barker answered on Jan 17, 2020

Only licensed Contractors/Sub-Contractors can lien real property for services/materials provided on a private work. PLUS: Any licensed contractor/sub who did not have a direct contractual relationship with you had to have provided a timely "20 Day Preliminary Notice" to you/homeowner in order to... Read more »

1 Answer | Asked in Civil Litigation for California on
Q: Can my father sell my home that he and my mother grant deeded to me two years ago
Donald M Barker
Donald M Barker answered on Jan 15, 2020

If your situation is as clear and simple as you state, than most likely, "No." BUT: I do not think your "situation" is as clear and simple as stated. You may be referring to your Parent's Trust or Living Will, under which you were/are to get the home.

In that case, if the trust or will is...
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1 Answer | Asked in Civil Litigation for California on
Q: Can a default money judgement in California be renewed if the ten year period has passed more than 6 months ago?
Donald M Barker
Donald M Barker answered on Jan 15, 2020

683.010. Except as otherwise provided by statute or in the judgment, a judgment is enforceable under this title upon entry.

(Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.)

683.020. Except as otherwise provided by statute, upon the...
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