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Questions Answered by Donald M Barker
4 Answers | Asked in Employment Law for California on
Q: Do I need to have an attorney to reply to a request for payroll records and wage statements by an attorney?

An ex-employee has acquired a lawyer from Lawyers for Employee & Consumer Rights. We received a letter requesting payroll records and wage statements for a potential workplace related claim.

They also want us to sign a Tolling agreement which we don't understand the form.... Read more »

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

Labor Code § 1198.5 provides that (with limited exception): “Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning... Read more »

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5 Answers | Asked in Car Accidents, Construction Law and Small Claims for California on
Q: What are my options when trying to recoup vehicle repair costs associated with damage caused by Caltrans' subcontractor?

Hello,

Significant vehicle damage was incurred due to freeway construction debris collision with my vehicle. Caltrans claim was submitted by both my vehicle insurance and myself. Caltrans responded about a year later to my insurance, stating that this instance was caused by their... Read more »

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

You write: "My insurance paid for the repair costs, and has closed the claim due to inability to recover costs from the responsible party."

If you are out no monies, then let it go. Your insurance has the "Subrogation" right to seek reimbursement for monies it paid to...
Read more »

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2 Answers | Asked in Civil Litigation, Employment Law, Tax Law and Small Claims for California on
Q: Employer hasn't paid full wages for a year. Recently, business became LLC. Can employee get past wages still?

Employee was working "under the table" but is still paid by company check at times. July 2019 to Jan. 2020 unpaid hours are 336.75 hours. Employers reason for not paying is he is waiting for final job payment. In good faith employee accepted excuse. Employer has given token payment... Read more »

Donald M Barker
Donald M Barker answered on Aug 18, 2020

Original employer, whether a Corp, LLC, sole proprietorship, or partnership is always liable for wages, even if company dissolves or goes out of business--then owner or shareholders can be liable.

If a business "converts" from sole proprietorship to Corp, LLC etc., the...
Read more »

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3 Answers | Asked in Employment Law for California on
Q: Does email service constitute as mail service
Donald M Barker
Donald M Barker answered on Jul 15, 2020

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=1010.6.

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3 Answers | Asked in Business Law and Trademark for California on
Q: Somebody is selling goods using my mark. They claim to have been using it before I filled. What can I do?

I have sent out a cease and desist letter.

Donald M Barker
Donald M Barker answered on Jul 13, 2020

Assuming you have a valid Service or Trade Mark, i.e., formally registered with the USPTO, and company using your Mark does not "Cease and Desist," you'll need to file a lawsuit.

Here is website to check on your Mark.

https://www.uspto.gov/trademark

If...
Read more »

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3 Answers | Asked in Criminal Law for California on
Q: I was working at Walmart and took about 5 grand from the register, what are my chances of avoiding a felony

thanks

Donald M Barker
Donald M Barker answered on Jun 14, 2020

If you’re saying you only took five grand, and not 15 grand, then you need to go to jail. You are a thief.

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2 Answers | Asked in Business Law, Contracts and Construction Law for California on
Q: I recently received a bill from a handyman for services rendered in December of 2017. Do I have to pay this?

I have never been billed for these services and had inquired multiple times for a bill in December 2017. Since so much time has elapsed, I feel even the hours are a bit high. I believe this was an oral agreement only for the work rendered Am I still responsible to pay?

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

As a general rule, any civil action for monies owed for services or goods must be commenced within two years of providing such services or goods, with some narrow exceptions. If there is a written contract, the statute of limitations is four years, with some exceptions.

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3 Answers | Asked in Civil Litigation and Civil Rights for California on
Q: I cannot go to court 100 miles way in June and I'm being sued.

I"m 63 fully disabled and own a house with little equity and a mortgage and zero money. It is automatically homesteaded in San Bernardino. I went from partial to fully disabled in 2017.

I cannot go to court 100 miles way in June. I can't even leave my house 99% of the time.... Read more »

Donald M Barker
Donald M Barker answered on May 22, 2020

Have you been "Served" with a Summons and Complaint? If so, you have 30 days to file an Answer. This is a simple form you fill out and can file online. Once you file your Answer, you can try to negotiate a settlement with Plaintiff. None of your assets, home, money or otherwise are... Read more »

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2 Answers | Asked in Employment Law for California on
Q: If I win a unpaid wage case. Does the employer pay my agreed upon percentage to my Attorney? Leaving me with the award?
Donald M Barker
Donald M Barker answered on May 17, 2020

You should have been awarded your attorney fees, along with wages owed. You have to carefully read your retainer agreement with your attorney to see how the issue of an attorney fees award is handled.

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4 Answers | Asked in Personal Injury, Civil Litigation and Libel & Slander for California on
Q: What kind of lawyer would I need for suing an ex boss

I was let go because of false accusations made my a third party from my job. My boss refused to pay me because of an outstanding loan because he applied it to that. I told him he can’t do such and I would file a wage claim. Once he received the conference notice he filed a police report saying I... Read more »

Donald M Barker
Donald M Barker answered on May 12, 2020

I assume you have collected all wages, penalties owed by employer. You most likely also have a Libel (Defamation) claim against employer, based on his derogatory writing to a third party, accusing you of a crime.

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2 Answers | Asked in Employment Law for California on
Q: Hello, I wanted to know can a employer ask u to pay back overpayment of wages?

The backstory is I was given excess sick and vacation leave when I left for maternity leave. However, I wasn’t able to go back to the company anymore and therefore I resigned in March. Now towards the end of April, they are asking me to pay back the excess vacation leave and sick leave. Are they... Read more »

Donald M Barker
Donald M Barker answered on Apr 29, 2020

An employer can ask you to do any and everything. However, you're not obligated to do anything. Hence, you can voluntarily pay back the wages, if you want. If you do not pay back the wages voluntarily, they would have to sue you in court and get a judgment.

The most viable defense...
Read more »

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1 Answer | Asked in Contracts, Civil Rights and Landlord - Tenant for California on
Q: I'm on a month-to-month joint lease and need to find out how I can evict a roommate that has not paid rent in 3 months.

I've already filed for small claims, but the courts are currently closed. I need to know what I can do to protect myself financially and what I can do to get the current roommate to leave as I am still obligated by contract to cover their part of the rent.

Donald M Barker
Donald M Barker answered on Apr 7, 2020

You are in a sticking situation. If you both are on the lease as co-tenants, only the Landlord can evict non-paying renter. PLUS: Depending on city/county you're rental is located, there are newly-placed holds on all eviction proceedings, for at least 60 to 90 days, due to Corona V.... Read more »

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... 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...
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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...
Read more »

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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...
Read more »

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...
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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... 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...
Read more »

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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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