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Questions Answered by Nathan Wirtschafter
3 Answers | Asked in Collections for California on
Q: I've been served with a judgement against me. other party states I was served 6/12/12 in San Jose I lived in Stockton.

I was living in Stockton at that time and was never served. Just got the judgement through the mail 6/29/20. Judgement is for 16k original balance 8 years ago 8k. Other party will not take less than 10k

Nathan Wirtschafter
Nathan Wirtschafter answered on Aug 10, 2020

Under California Code of Civil Procedure section 473(b), the Court can relieve a party of a default judgment due to "his or her mistake, inadvertence, surprise or excusable neglect."

Also, the court may, upon noticed motion, set aside any void judgment or order. (Code Civ. Proc....
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1 Answer | Asked in Contracts for California on
Q: I am currently in the middle of a lawsuit due to breech of contract on a sale of my home. House is owned by 2 parties.

Other party decided to back out of sale before escrow and refused an inspection of property. Can both of us be sued or can other party only be sued for there backing out. What are my options? What can I do?

Nathan Wirtschafter
Nathan Wirtschafter answered on Aug 2, 2020

If a seller breaches a residential real estate contract, the buyer may sue for damages or specific performance. A suit for damages is either for a specific amount set by the contract (liquidated damages) or for the actual amount of damages suffered, as calculated by statute. (Civil Code sections... Read more »

2 Answers | Asked in Collections, Contracts and Small Claims for California on
Q: I have a decently sized default judgement from a UD in Ca. Are there companies or attorneys who can help collect?

I have the UD, Writ of Execution (from 2013) and have tried to serve 2-3 banks years ago to see if this individual had money with those banks with no luck. Its been several years now and this POS has written another book (hes a complete fraud) but it looks like he has been making money. I think I... Read more »

Nathan Wirtschafter
Nathan Wirtschafter answered on Jul 27, 2020

Your 2013 writ of execution is almost certainly no longer valid. A writ of execution is valid for two years from its issuance. (Cal. Code Civ. Proc. section 697.710.)

As an alternative to a writ of execution, you may consider a judgment debtor examination coupled with a turnover order....
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1 Answer | Asked in Contracts for California on
Q: Would a building repair requirement be considered different than a refurbishment, improvement and/or remodel?

This is related to a lease clause of a commercial building and the landlord is stating that he is not responsible for repairs to the building due to code violations because he disclaimed any financial responsibility for any "refurbishments", "improvements" and/or... Read more »

Nathan Wirtschafter
Nathan Wirtschafter answered on Jul 15, 2020

I'd like to know more about the lease. Leases typically specify that: (a) the property is not in violation of any building code, regulation or ordinance, and (b) that the landlord will maintain/repair the building as needed.

If the above-listed provisions exist, arguably, the...
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2 Answers | Asked in Business Law and Contracts for California on
Q: Is it possible to create an NDA and supplier agreement with an international supplier that is enforceable in the US?

One of my major vendors based in Asia is asking for customer information and invoices in order to keep giving me Distribution price.

Nathan Wirtschafter
Nathan Wirtschafter answered on Jul 5, 2020

A breach of an NDA can lead to litigation. In Five Star Gourmet Foods, Inc. v. Fresh Express, Inc. 2020 WL 513287, Five Star sued Fresh Express for fraud, misappropriation of trade secrets, unfair competition and other claims based, in part, on alleged breaches of various NDA's. Five Star... Read more »

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3 Answers | Asked in Contracts for California on
Q: consignee refuses to return precious jewelry and an antique clock worth $7,000 I was out of country for one year

We had a verbal agreement to keep items until they sold. Now they claim I Abandoned them What Cal. Agency must I complain to?

Nathan Wirtschafter
Nathan Wirtschafter answered on Jun 30, 2020

As stated by the other attorneys, this is appears to be a civil dispute which belongs in court.

In Premchand v. Mohammed 2005 WL 705304 (Unpublished), a diamond merchant sold another diamond merchant over $1.1 million in diamonds on consignment. The trial court entered judgment in favor of...
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1 Answer | Asked in Real Estate Law for California on
Q: Are we in the wrong if our disclosed license contractor is not licensed in our house sale?

We had some remodelling done by a contractor introduced by our agent who said he is licensed. We got his license number, check against CA licensing site, and it’s valid. After the sale of the house, there was an issue. We gave the contractor contact to the buyer and seemed like the contractor... Read more »

Nathan Wirtschafter
Nathan Wirtschafter answered on Jun 23, 2020

In California providing contracting services without a license is a misdemeanor. See Bus. & Prof. Code § 7028(a). Plaintiff is entitled to a full refund of “all compensation” paid. See id. at § 7031(b). To “protect the public from incompetence and dishonesty” by contractors, the... Read more »

2 Answers | Asked in Contracts for California on
Q: a friend of mine borrowed 170k USD from me and I do have the agreement, but he did not pay me back, possible?

is it possible to get it back? i am in great debt and can't afford any expensive lawyer fee

Nathan Wirtschafter
Nathan Wirtschafter answered on Jun 15, 2020

Business collection attorneys regularly use contingency fees in collection cases. Creditors typically do not wish to risk additional money on the promissory note, bill or receivable. Sometimes, creditors also believe that attorneys will work harder if their fee depends on the amount collected.... Read more »

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1 Answer | Asked in Divorce, Family Law, Civil Litigation and Civil Rights for California on
Q: Can i record an abstract on a partial judgement on reserved issues that hasnt been finalized

I recorded a partial judgement on reserved issues that wasnt the final judgement ....what should i do?

Nathan Wirtschafter
Nathan Wirtschafter answered on Jun 14, 2020

Generally, an abstract of judgment is issued and recorded on the final judgment.

However, in certain circumstances, the clerk of the court will issue an abstract on a partial judgment. See Lucky United v. Lee (2010) 185 Cal.App.4th 125, 131, 142 (clerk issued abstract of judgment and...
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1 Answer | Asked in Contracts and Real Estate Law for California on
Q: We signed housing contract on Monday escrow opened and on Wednesday night we realized we made a big mistake.

How can we back out of this contract?

Nathan Wirtschafter
Nathan Wirtschafter answered on Jun 3, 2020

“A big mistake” could mean many things.

Generally speaking, if the Seller has breached the contract, the Buyer has three options: (1) finding a loophole in the contract to walk away; (2) suing for damages in an action for breach of contract; and/or (3) filing a lawsuit for specific...
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3 Answers | Asked in Employment Law and Collections for California on
Q: I'm an independent contractor massage therapist. The spa owner is 2 months behind with payment. How do I get paid?

The spa owner said she would pay what is owing when her divorce settles, and money is released from an escrow account. I've been waiting for about 2 years. The spa owner claims not to have the money when I've asked repeatedly to be paid. I need options to compel the owner to pay what is owed.

Nathan Wirtschafter
Nathan Wirtschafter answered on May 21, 2020

On January 1, 2020, California enacted AB-5, which outlines various standards under which workers are either independent contractors or employees. (However, most of these standards were in effect at least as far back as April 2018.)

My concern is that you and the other “independent...
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2 Answers | Asked in Employment Law for California on
Q: I am a resident of California. This is about non-competition restriction which the employer requires me to sign.

The restriction reads as follows and i want to know if i can really face charges in case i perform 'similar services' to another company:

"During your employment with XYZ, you shall not, without the prior written approval of XYZ, provide or perform services, in any capacity... Read more »

Nathan Wirtschafter
Nathan Wirtschafter answered on May 11, 2020

Business and Professions Code section 16600 generally outlaws non-compete provisions taking effect after an employee leaves his employer.

On January 21, 2020, the California Court of Appeal, Second District, published an opinion entitled Techno Lite, Inc. v. Emcod, LLC, (2020) 44...
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1 Answer | Asked in Business Law and Contracts for California on
Q: Does a company have to pay a contracted employee if the company releases them from their contract?

The terms of the contract were for a multi-year deal to perform continuously for 750,000$ spread out monthly over 2 years. The "employee" in this case is listed as an independent contractor

Nathan Wirtschafter
Nathan Wirtschafter answered on Apr 21, 2020

There is not enough information posted to answer the question. The IC's rights and obligations are governed by the terms and conditions in the agreement, as well as the performance of the contract. You should: (1) gather all the relevant documents, including: contract, communications... Read more »

2 Answers | Asked in Real Estate Law for California on
Q: My neighbor has been cutting my trees. Is it legal to put no trespassing signs facing their backyard? I’m in CA.

I have put a brick wall and a trellis to prevent any foliage to fall into their backyard. However, he has still been cutting our trees within and far beyond our shared fence line. I have put up “Beware of Dog” signs and “No Trespassing” signs on the fence, but he spray painted over them. We... Read more »

Nathan Wirtschafter
Nathan Wirtschafter answered on Apr 24, 2020

Civil Code section 3346 provides for treble damages for unlawfully cutting down trees, if the trespass was intentional, and double damages if the trespass was unintentional. The California Supreme Court, on February 20, 2020, just issued a decision on this issue. (Scholes v. Lambirth, (2020) 8... Read more »

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