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Darryl Jay Horowitt

Darryl Horowitt’s Answers

5 total

  • My lease says tenant pays for all legal fees regardless of any outcome and such fees would be billed to tenant as added rent.

    The lease also says it will be effective next month whether or not I sign it. Is this provision legal?

    Darryl’s Answer

    Generally, whether attorney's fees are recoverable is a matter of what is contained in a written contract or statute. Here, your landlord is trying to shift the burden of paying fees to the tenant. If you do not sign the agreement, there is no written contract that provides for reimbursement of fees and, while some of the basic lease terms could be enforceable - as a written contract - the provision for attorney's fees may not. If you sign the agreement, a court could determine that the fees incurred in a lawsuit are recoverable but it is difficult to say whether or not a court would find the provision you describe as enforceable as it requires the tenant to pay fees to the landlord even if the tenant wins. You may wish to consult with a local attorney on this point before signing any agreement.

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  • I am a homeowner who recently had to fire the general contractor. What do I owe him for work completed?

    My contractor and I have no formal contract, only an estimate with my signature. The estimate has no estimated date of start/completion, no language about anything, not even his license number. It also does not have his signature. Is this estimate...

    Darryl’s Answer

    It is difficult for an attorney to answer your question without knowing more about your problem. For example, were you having a house built or were you remodeling. If you were remodeling, the Business & Professions Code sets forth requirements for a home improvement contract, including the start and completion date. In addition, if the estimate does not have the contractor's license number on it, he/she may be unlicensed, in which even you may not have to pay anything and may be able to recover what you already paid to the unlicensed contractor. You should contact an attorney with experience in construction law to help you. An hour consultation may provide you with the answers you need.

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  • A contractor filed mechanical line which he has been fully compensated. What can I do to remove that lien. I am in Califronia

    He filed it two weeks ago.

    Darryl’s Answer

    Assuming the contractor was paid in full, you can request that the contractor release the lien. As the contractor was being paid, you may have received a waiver and release of lien in exchange for your payment. If so, you can use it to prove that no futher payment is due. If you did not receive such a waiver with each payment, you can either demand that the lien be removed now or wait. The contractor has 90 days to file suit to enforce the lien. If no suit is filed within that time, you can file a petition with the court to have the lien released. You can also obtain a mechanic's lien release bond from a reputable bonding company. If you do so, the bond will replace the lien and the contractor must sue to recover on the bond within the 90 day period. Those are merely some thoughts based on the limited information provided.

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  • When is the time to bring an action for indemnity and contribution?

    My company got sued for copyright infringment of a song we publish. We have a claim for indemnity in our contract with the writers if the lawsuit results in a final judgment. Are we required or is it wiser to bring this claim as a cross-claim at ...

    Darryl’s Answer

    The answer depends on what state you are in. While for many it is desireable to file a claim for indemnity and contribution by way of a cross-complaint, the statute of limitations for such a claim may not start to run until you are obligated to pay a judgment. In other states, it may arise when you are obligated to pay attorney's fees to defend your company. Thus, it may be best to file the cross-complaint for indemnity with the answer. In many instances, when such a claim is made, the writer may agree to defend. It is also best to tender the claim to your insurer, whis may provide coverage for the complaint.

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  • If someone decides to sue my corporation, can't I just sell all the IP assets to someone else before litigation commences?

    To save the IP assets, isn't it possible to just sell the IP assets to someone else before legal action commences? To therefore protect those assets. Surely I can do what I want in my own corporation and sell to who I want, whenever I want? This i...

    Darryl’s Answer

    The responses you have received so far answer your question. I would, however, check to see if you have insurance that may cover this claim. Most general liability insurance policies provide protection against most suits that might be filed. To be sure, check with your insurance agent to determine if you have coverage for anticipated suits including coverage for inadvertent patent and/or trademark infringement or misappropriation of trade secrets. If not, let your agent know how you conduct your business and ask what additional protections you should have and, based on your budget, add them. In addition, to better protect yourself, get some umbrella insurance, which provides additional insurance coverage over and above your underlying general liability and/or auto insurance. It is a nominal expense and may provide a defense to a claim that may not be covered by your general liability insurance.

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