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Patrick Merritt Maloney

Patrick Maloney’s Answers

5 total

  • Attorney Background Check?

    How do I find out if complaint have been filed against an attorney in California? Can I make this call anonymous? If he is not a member of the local bar association, his record won't be there right? Also, a record of complaint won't be there i...

    Patrick’s Answer

    The California State Bar website lists disciplinary action against California attorneys. www.calbar.ca.gov

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  • Can a minority shareholder be fired after he fined that there was money embezzlement?

    I fined out after looking at Bank statements and accounting files that the majority share holders embezzled money and used the company accounts to pay for there own private expenses. I'm 40% and there's 30% each. its a c corporation. Thanks.

    Patrick’s Answer

    A few additional thoughts:

    1. Whether you are a minority or majority shareholder depends on whether the others are working together to control the corporation and whether they have practical control.

    2. An employment claim is a seperate matter from whether your rights as a shareholder have been violated, but this sounds like it gives rise to a complaint for retaliatory termination/wrongful termination in violation of public policy.

    3. The specific facts will dictate whether you can bring a claim against the corporation in your own name, or whether you are limited to a derivative action, brought in the name of the corporation. Whether you want to bring suit at all will turn on (1) the amounts taken, (2) any unique or specific rights in the shareholder documents, operating agreements, buy/sell agreements or other documents governing the relationship of the shareholders with one another and the corporation, and (3) your tolerance for what may be a very nasty fight.

    4. Sounds like the corporation needs better checks and balances.

    You need to talk with an attorney.

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  • Does a 998 cost-shifting demand trump the "prevailing party" rule? Does it include 1st appearance fees?

    Me, partner and corp were sued for $4k but haven't answered P's complaint yet. This is a BS suit for $4k for an oral K for his services, no written contract for services or to pay legal fees, P just claims hours of work we didn't agree to pay for ...

    Patrick’s Answer

    The 998 will only have an impact on costs if your adversary does not recover the amount reflected in your 998, as drafted, including considerations such as whether the offer is inclusive or exclusive of costs. 998s can be tricky to draft and there is a large body of case law about how they should be interpreted. Misdrafting the offer can defeat the purpose. In any event, if the judgment is less than your offer, then costs will be shifted, and I can think of no reason why that would not include first paper fees. But, if your adversary recovers $1001 (again subject to the rules on interpreting the offer, such as whether costs already incurred are or are not credited), he will be entitled to fees. Your goal should be to force the case to settle by making a 998 that causes doubt about whether the other side will do better.

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  • Can I use the California anti-SLAPP in Federal court against a frivolous Lantham violation allegation?

    Does the state protect me from federal SLAPPs?

    Patrick’s Answer

    Whether you can rely upon the Anti-SLAPP statute depends on the gravamen of the allegations. The fact that a lawsuit against you lacks merit is, itself, not a sufficient basis to invoke the Anti-SLAPP statute. Rather, you will need to show that your use of the mark was in some way part of protected activities. I think this will be challenging to establish, without know more about the allegations against you.

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  • Can I claim the fifth amendamanet when supeonaed for a divorce case involving child custody hearings

    Does the judge or defendant have the right to ask me personal questions pertaining to me andnot the poeple or persons who are targeted in the case.

    Patrick’s Answer

    Generally, you need to have a legitimate basis to claim the Fifth Amendment, including a reasonable apprehension of criminal prosecution. This is oftentimes met by showing that you are involved in a criminal case or under investigation in connection with a criminal matter. Short of that, the judge may overrule your Fifth Amendment objection, require you to answer, and hold you in contempt if you do not.

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