At the Law Offices of Paul G. Minoletti, we analyze your case to find every avenue to effectively represent you in your business contract or business litigation matter.
Business contract matters fall into two general groups: (1) contract litigation disputes, and (2) contract preparation or review. Our office handles both types. For more information about business contract preparation (non-litigation) please contact the office.
Business contract litigation disputes include: breach of contract, breach of warranty, fraud, breach of fiduciary duty and contract negligence claims. Business contract litigation often overlaps with other practice areas, such as Collections, Debt Negotiation, and/or Real Estate, therefore, you can review this general business litigation information, and see the other specific practice areas for additional information. Contracts may be oral or written, and can be proved by documents, correspondence, and/or testimony. Our office would assist you in organizing your evidence to prove your case and maximize the value of your claim. Our office would then represent you vigorously throughout the litigation process from beginning until your matter is resolved.
Breach of contract matters usually require proof of following elements: (a) written or oral contract; (b) performance or excuse for non-performance; (c) breach or default; and (d) monetary damages or loss.
In order to enforce a contractual obligation, a party must have performed its own conditions under a contract, or have a valid excuse that the other party prevented or waived its performance. (C.C. 1439)
The facts constituting the other party’s breach of contract must be stated with certainty. For example, if the obligation of the contract is to pay money, the breach consists of nonpayment. Or, the contract may call for performance of some service, delivery of goods, or something other than payment of money. Where the action is based on an anticipatory breach, the complaint should allege defendant’s repudiation. Negligent acts of performance may also be alleged as a breach.
Actual Damages: “For the breach of an obligation arising from contract, the measure of damages … is the amount which will compensate … for all the detriment proximately caused …” (C.C. 3300.) However, it is essential to establish a direct connection between the breach and the monetary damages sought.
Punitive Damages: For the breach of an obligation “not arising from contract.” Hence, such damages are not for breach of contract, unless where the wrongful act is also a tort (fraud, conversion of property, etc.) (C.C. 3294)
Consequential Damages: “No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.” However, you may recover for the profits or benefits which he would have obtained by performance if you can establish them with reasonable certainty. (C.C. 3301) Such damages may include:
Future Profits. “..[If] past experience has demonstrated the success of the enterprise and provides a reasonably certain basis for the calculation of plaintiff’s probable loss.” (Hoag v. Jenan (1948) 86 C.A.2d 556, 564) On the other hand, if the anticipated profits were not to come from an established business or profession, but from a new business to be established, the difficulty of estimating them has generally led the courts to classify the damages as uncertain and speculative, and to deny recovery.
Plaintiff’s Expenditures. Another measure of contract damages is the amount of the costs expended plus the reasonable value of your own services, in preparation and performance in reliance on the contract.
Mental or Physical Pain & Suffering. Ordinarily, damages are not recoverable for mental suffering resulting from a breach of contract in the absence of physical injury.
Interest: “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day [at up to the judicial rate of ten percent per annum] (C.C. 3287(a))
Liquidated Damages: Some contracts have predetermined fixed penalty amounts for damages. (C.C. 3287(a))
Attorney Fees: Attorney fees may only be recovered if the contract has a specific provision in writing for the recovery of attorney fees in the event of a breach or lawsuit. Alternatively, certain types of agreements have statutory attorney fees imposed even if the contract does not contain an express attorney fee clause, such as consumer warranty cases. In any event, the court ordinarily awards the prevailing party is actual court costs, plus any reasonable contractual or statutory attorney fees.
No two cases are alike and procedures vary with the nature and complexity of the legal and evidentiary issues involved. The following is a very general outline of the stages of a civil action.
Every case begins with the filing and service of a Complaint. The Complaint will contain one or more “causes of action” such as Breach of Contract, Breach of Warranty, Fraud, Breach of Fiduciary Duty, Negligence, Malpractice, Conversion, Common Counts, or Statutory Violations.
After the Summons and Complaint have been filed with the court, they must be properly served on the defendant(s), typically by a registered process server.
The Defendant(s) have 30 days from the date of service of the Complaint to file either a General Answer to the Complaint or a Motion (Demurrer or Motion to Strike) challenging the Complaint. If the defendant(s) decide to file a demurrer or motion to strike, these motions must be heard and ruled upon before the matter may proceed. If such motion is granted, and the court grants leave to amend the Complaint, an Amended Complaint must be filed.
Once the Complaint and Answer have been filed both parties start a process of “discovery” of the evidence of both sides. Depending on the nature and complexity of the case, one or more of the following discovery devices may be used by the parties:
• Interrogatories: Written questions which must be answered under oath.
• Request for Documents and Subpoenas.
• Deposition: The parties may be required to appear in the opposing attorney’s office to orally answer questions under oath in front of a court reporter.
If a party fails or refuses to substantially comply with discovery requests, it may be necessary for the party propounding the discovery to make a motion in court to compel responses. If the court grants the motion, further responses must be produced or the court can sanction the resisting party, requiring them to pay your attorney fees, or even terminate entire the lawsuit in favor of the moving party.
Throughout the case the court will set a series of Case Management, Status, Trial Setting, or Final Conferences to be attended by attorneys for all parties. These hearings are designed to determine whether the case is ready for trial. When the court feels that a case is ready for trial, it will set the date for trial.
Settlement negotiations may be take place prior to the filing the Complaint up until trial. Often the court will request the parties schedule a Mediation or “Mandatory Settlement Conference” before the trial date. If the case settles, a formal settlement agreement will be signed and the case will be dismissed. If the case does not settle, and the parties have filed all required documents, the court will set the date for trial.
The vast majority of cases resolve without a trial: either by default, by motion, or by settlement. However, if the case goes to trial, the parties attorneys will prepare a trial brief, list of witnesses and exhibits, and prepare witnesses to testify at trial. Most trials last one (1) day or less, unless it involves complex issues, multiple witnesses, or a jury.
In the event that you win at trial, or by default, or by motion, or by settlement, if the other party fails to pay as ordered by the court, our office will take action to collect the award amount through enforcement options, including: (1) bank account levy, (2) wage garnishment, (3) business cash register levy, (4) real estate lien, (5) personal or business property levy, (6) debtor examinations and income record subpoenas, and (7) all other remedies available under the law. For more information about post-judgment collections, please see our Collections Litigation page.
Business contract litigation matters are performed on an hourly basis, and not on a contingency (or pay at the end) basis. My office will outline an estimate of your actual attorney fees and costs during the initial consultation, and update the estimate again throughout the course of litigation. The usual fee structure for these kinds of cases includes:
• Attorney Fees: A minimum fee deposit (“retainer fee”) depending on the size and complexity of the case. The retainer fee is a deposit on the attorney’s hourly rate. Attorney fees can be paid in cash, check, or credit card. Payment may be made by the client, or a family member/friend on behalf of the client. Depending on the case, or the timeline, a payment plan may also be offered.
• Court Costs/Expenses: The initial court filing and service costs are approximately $500 per party. These are costs separate from the attorney, that the court or third parties charge you for certain litigation services. Additional costs vary depending on the case.
• At the resolution of your case, depending on the applicability of an attorney fee clause or any settlement terms, you may be entitled to have the other party reimburse you for some or all of your attorney fees and court costs.