Business Matters, and Litigation
The Scarlett Law Group
based in San Francisco, is a national law office specializing in the
trial and resolution of civil actions in California and throughout the
United States. The Scarlett Law Group
has been given the highest rating possible "AV" and is on Martindale Hubbell's Bar Register of Preeminent Lawyers. The Scarlett Law Group
has obtained outstanding results in commercial and business litigation cases
and is well suited to handle your commercial transactions, business matters or litigation needs. The Scarlett Law Group
offers creative and flexible fee structures
. Please feel free to contact us for a free initial consultation concerning your matter.
The Scarlett Law Group handles commercial transactions, business matters and litigation in these areas:
- Business Formation (Corporations, Limited Liability Corporations
(LLC), Sub-Chapter S Corporations, Partnerships, Limited Liability
Partnerships (LP), Joint Ventures, etc.)
- Disputes Among Owners, Partners, Members, Joint-Venturers
- General Business Legal Counsel
- Breach of Contract
- Breach of Fiduciary Duties
- Contract Interpretation Disputes
- Specific Performance of Contracts
- Commercial Litigation, Arbitration and Mediation of disputes
- Business Torts:
There are at least 23 common law business torts
recognized by most states. Indeed, some variations of each claim would
necessarily bring the number of business torts much higher. These
claims include, but are not limited to, the following types of claims:
Generally speaking, the liability case for common law fraud involves
five elements. The first element is a false representation of material
In many jurisdictions, the false representation must relate to a matter
of existing or past fact, not merely an expression of intent to act in
the future or an expression of promise. However, a promise is
actionable as fraud if the promisor had no intention of performing the
promised action in most jurisdictions.
The plaintiff carries the burden of providing that the defendant had no
intention of performing the promise. In most instances, whether the
defendant intended to perform is a question of fact to be determined
from all the circumstances.
The second element requires that the false representation be made with
knowledge of its falsity, recklessly, or without reasonable grounds for
believing its truth.
The third element is intent to induce reliance. Intent to deceive
traditionally is not required as long as the plaintiff proves an intent
to induce reliance.
Justifiable reliance is fourth essential element of a claim for fraud.
Reliance is usually held not to be justifiable where it is demonstrated
to be unreasonable in light of the plaintiff's intelligence and
The last element of a claim for fraud is that of damages. Generally
speaking, where fraud has been proved, general damages, special
damages, and punitive damages may lie.
Unfortunately, in the commercial setting, fraud is experienced more
often than not. The Scarlett Law Group recently successfully resolved a
case involving alleged property management fraud. Click here for further info
When an individual has an ownership right, or immediate right to the
possession of property, and where that property sustains damages due to
(1) a defendant's wrongful act or disposition of the plaintiff's
property; and (2) a defendant's intent to exercise dominion over the
plaintiff's property, then a claim for Conversion is generally allowed.
Most jurisdictions recognize that "personal property" includes
documents such as bonds, notes, bills of exchange, stock certificates
or warehouse receipts. Even money can be the subject of conversion, but
only if it is a specifically identifiable fund or corpus, although the
actual bills need not be earmarked.
The element of "wrongful act or disposition" requires an actual
interference such as taking, destruction, alteration, transfer, use,
withholding, misdelivery or failure to return.
Remedies for a conversion can include the specific recovery of the
property plus damage for loss of use or damages based on the value of
the property based on the theory of forced sale, or quasi-contractual
restitution based on unjust enrichment when the plaintiff's conduct has
waived recovery for tort.
Negligence is defined in common law as the breach of a duty owed to the
plaintiff which was the direct and proximate cause of damage to the
Since the intent to cause injury or harm is not extant in negligence
actions, a defendant's unintentional harm to a business interest may
nonetheless be actionable, and recovery may be had, where a duty was
owed and breached thereby causing damages.
Negligent misrepresentation is a lesser form of fraud and deceit.
Generally speaking, six elements are required for satisfaction of the
First, there must be an actual false representation. Second, the false
representation must made for business purposes in the course of a
business or profession. Third, the false representation must be made
without reasonable grounds for believing it to be true. Fourth, the
false representation must be made with the intent on inducing reliance.
Fifth, the plaintiff must have justifiably relied. Finally, the sixth
element requires that there be damage caused thereby.
Where malicious prosecution is recognized, there are generally four
elements required in order liability be established. First, there must
have been a favorable, though not necessarily final, termination of a
(2) prior separate proceeding (either criminal, civil or
administrative), (3) prosecuted without probable cause and (4) with
malicious intent (ill will or improper purpose).
As with fraud, damages involved in successful malicious prosecution
actions include general damages, special damages, as well as, punitive
Abuse of Process is defined as the use of "legal process, whether
criminal or civil, against another to accomplish a purpose for which it
is not designed."
"Process" includes, but is not limited to, execution, injunction,
summons, notice of taking deposition, discovery, and excessive or
First, there must be a willful act in the use of the process which is
not proper in the regular course of the proceeding. Secondly, there
must be an ulterior purpose.
In order to establish a claim for Tortious Interference with Contract, six elements must usually be established:
- A valid existing contract;
- That defendant had knowledge of;
- That defendant intended to induce breach of;
- That the contract was in fact breached or performance was rendered more difficult;
- Causation; and
- Actual damage.
Tortious Interference with Employment Relationship requires four elements:
First, there must be an interference with employment relationship.
Secondly, the interference must be intentional or negligent. Third, and
Fourth, there must be causation and actual damage.
Generally speaking, there are five elements applicable to this
particular tort. First, there must be an economic relationship
containing the probability of future economic benefit. Secondly, there
must be knowledge by the defendant third party of the existence of that
relationship. Third, there must be intentional or negligent acts on the
part of the defendant designed to disrupt the relationship. Fourth and
Fifth, there must be actual disruption of the relationship and damages
There may be a recognized "Competitor's Privilege" to interfere, even
intentionally, with prospective contractual relations so long as
wrongful means are not used. Each jurisdiction varies on this point.
Depending on jurisdiction, Invasion of Privacy may be both a common law
claim and statutory tort. At common law, the prima facie case for
liability generally involves four elements. The first element is an
"invasion" which may consist of eavesdropping, shadowing, trailing,
wiretapping, electronic eavesdropping, or the covert use of voice
stress analyzers, or commercial or non-commercial use of one's name or
picture. The second element requires that the invasion be non-oral. The
third requirement is that the invasion be of the right to live an
ordinary, private life without subjection to unwarranted or undesired
publicity. Lastly, the invasion must have injured the plaintiff's
feelings. Thus, the injury is not to reputation, as in defamation, but
is an injury to one's peace of mind.
This claim is straightforward in that the elements are: (1) An
intentional; (2) interference; with (3) a lawful business, calling,
trade, or occupation.
To establish the tort of Misappropriation of Trade Secrets, there must
first be in existence a "Trade Secret". A trade secret is defined
generally as "any formula, pattern, device or compilation of
information which is used in one's business, and which gives one a
competitive advantage over one's competitors who do not know it or use
it." Trade secrets need not be so unique as to be patentable, but the
competitive advantage element necessarily requires some uniqueness.
Secondly, there must be an appropriation through use, disclosure or non-disclosure.
Third, the appropriation must be wrongful. Generally speaking, wrongful
appropriation means a breach of an express or implied contract, or a
breach of trust or fiduciary duty.
Slander of Title is defined as the (1) oral or written; (2)
intentional; (3) false disparagement of the; (4) title to real or
personal property; (5) causing; (6) actual pecuniary damage.
It is not necessary to show that any specific business deal was
impaired. The recoverable damages consist of the general impairment of
vendability plus costs of litigation or other process necessary to
remove doubt cast on title.
Examples of slander of title include the recordation of an abstract of
judgment despite a stay of execution, the placing of a sign on a
neighbor's house falsely announcing the cloud on the title, the false
announcement by a lessor to a buyer of a lease from the lessee that the
lease is invalid; and the filing of a master plan by a developer which
falsely implied the right to use plaintiff's neighbor's property.
Generally speaking, there are six necessary elements for Trade Libel
which are (1) intentional; (2) disparagement [untrue statement of
fact]; (3) of the quality; (4) of property; (5) causing; (6) specific
The key difference between libel and trade libel is that the essence of
libel is non-monetary damage to the reputation of an individual,
whereas specific money damage to a business is required for trade
Basically, this tort sounds in common law unfair competition. Most
states now proscribe trademark infringement statutorily, and thus
reference to appropriate statutes are required.
Generally speaking, this tort also sounds in common law unfair
competition, although statutory codification is now taking place in
Common law unfair competition is an umbrella for a variety of arguably
separate torts, such as trademark and trade name infringement, "palming
off", "passing off", and "imitation of product".
The modern trend in both the statutes and common law is to expand the
scope of liability (unfair competition), imposing increasingly higher
standards of fairness on commercial morality and trade.
The traditional elements of Constructive Eviction are: (1) the landlord
commits or omits an act or acts which (2) render the premises or a
substantial portion thereof unfit for the purposes for which they were
Because constructive eviction is not a contract action, punitive
damages may be available for wrongful eviction obtained with the use of
oppression, fraud, or malice.
This tort is a species of the tort of civil conspiracy. Four elements
are involved: (1) conspiracy; (2) wrongful inducement or procurement of
breach of contract; (3) causation; and (4) actual damages.
The elements of a case for civil conspiracy are as follows: (1) the
formation and operation of a conspiracy; (2) the wrongful act or acts
done pursuant thereto; and (3) the damage resulting from such act or
The wrongful acts may be any civil wrongs; for existence, fraud or
inducing breach of contract. A key litigation consideration is the
availability of joint and several liability.
Most states now codify (or set forth via statute) the elements of nuisance.
Generally speaking, anything which is injurious to the health, or is
indecent or offensive to the senses, or an obstruction to the free use
of property, so as to interfere with the comfortable enjoyment of life
or property or unlawfully obstructs the free passage or use, in the
customary manner, of any navigable lake, or river, bay, stream, canal,
or basin, or any public park, square, street, or highway is a nuisance.
In general, the common law protects a copyright before general
publication, and compliance with the Federal Copyright Law, protects it
thereafter. There is, however, pre-emption. The laws of each
jurisdiction must be closely examined.
Products Liability is, of course, not a tort in itself but rather a
generic term covering four distinct theories of recovery, only two of
which sound in tort. The other two are contractual in nature.
One injured in using the product may sue on contract on the basis of an
express contractual warranty where an untrue statement of fact about
the quality of the product was made. Other possible contractual actions
are based upon implied warranties of merchantability and fitness for a
Negligence is a tort theory of recovery for injuries caused by a defective product.
Yet another theory of recovery is strict liability in tort for a
defective product. In order to establish such a claim, generally, the
plaintiff must establish that (1) the defendant made the product; (2)
the product was defective when it left the defendant's control; and (3)
it proximately caused damages.