Saturday, August 31, 2019

Opening a business in California- Part 5 Insurance for Your Business.

This is the fifth in a series of articles written for the purpose of assisting persons who intend to start a business in California.  It is designed for the small business owner who may not be familiar with California law or procedures. 

In this article, I will describe the process of finding and buying that will secure your company from liability. It is very important to be prepared for this potential insuring your business will protect both your assets and your business assets from liability. But choosing the right insurance can be a challenging task, especially for persons not familiar with the American commercial insurance industry. This article is intended to help you choose the right insurance for your needs.

I. Buying insurance.
When buying insurance, start by setting up some priorities that are most important for your company. First, check what coverage is required by state law and by your landlord (if you rent) and then tailor your coverage to these requirements. You also need to identify what your other business insurance needs will be. An insurance agent can help advice you. You and your insurance agent can discuss the best way to get the coverage you need, at the lowest cost. Keeping your cost low is important at the outset of your business since there will probably be many cash demands and few sources of cash inflow. Another way to keep the cost of insurance low is to purchase it through group plans that are often available through trade associations or other similar business organizations. Many trade associations and business groups such as the Chamber of Commerce provide members the benefit of purchasing insurance at group rates. Explore alternative trade associations for lower rates and a possible fit with your business.
To gain a better perspective on the amount of coverage your small business needs, take a look at your industry. Review the recent legal actions and settlements in your field. Talk to peers and find their level of coverage. Using your peer feedback and industry research, determine the average legal costs and settlement to set your coverage limits. If you find out what amount of coverage is enough for your business you can lower the premium by increasing the amount of your deductibles. The difference if you decide to choose $1000 instead of $250 as a deductible might save you 10-15% from your premium.
Another good way to lower your insurance costs is to find out what safety or security features serve to lower the rate. Sometimes even installing deadbolt locks or a sprinkler system may lower your rate significantly.
Before deciding on which insurance to buy, shop around, ask your business partners or even friends if they can recommend something. It is not a good idea to buy the first insurance that you have been offered. You might be able to buy comprehensive package which is specially tailored for your type of business.

Some firms choose to self-insure. This means that you don’t buy insurance but just maintain a special fund to cover likely loses or liabilities. Although it may seem like a good idea this could be a risky solution.

II. Types of insurance.

1.     Property coverage.
This type of insurance covers the property where you run your business. If you own the building where your company is located than you definitely need such coverage. The insurance can cover not only the building itself but also additions, furniture, machinery, equipment, outdoor fixtures and work in progress. Most property insurance is written on an all-risks basis, as opposed to a named peril basis. The latter offers coverage for specific perils spelled out in the policy. If your loss comes from a peril not named, then it isn't covered.
Make sure you get all-risks coverage. Then carefully review the policy's exclusions. All policies cover loss by fire, but what about such eventualities as hailstorms and explosions? Depending on your geographic location and the nature of your business, you may want to buy coverage for all these risks.

Typically property insurance is written in one of three forms:

·       Basic Form- this includes losses by lightning, explosion, windstorm, smoke, etc.
·       Broad Form- coverage contains everything that’s on Basic Form and adds protection from other perils like falling objects or breakage of glass.
·       Special Form- this is the most common form and affords the best protection. Instead of listing specific perils this type of policy simply covers all risks of physical loss unless the policy specifically excludes or limits loss.

When choosing the amount of coverage, remember that you only need coverage for the building and not for the land so you don’t need to insure the total value of your real property. Especially in California where land value is extremely high this might save you a lot of money.
   Another two options that you can get with your insurance are: “Replacement Cost Coverage and “Ordinance or Law Coverage”. Replacement cost insurance will pay you enough to replace your property at today's prices, regardless of the cost when you bought the items. It's protection from inflation. (Be sure your total replacements do not exceed the policy cap.)
Ordinance on law coverage requires the insurance company to not only replace the building but also pay for legally required upgrades when you own an older building and it will require some special renovation to fulfill building codes or other legal requirements.
Make sure the full value of an item is insured and check the terms for reimbursement. Just because you may have $1 million in coverage doesn't necessarily mean the whole amount is going to be applied in a given category of property. Also, if your company has a variable growth pattern, you may want to adjust your coverage annually.

2.     Liability Insurance.
This type of insurance protects you against liability from lawsuits or other claims up to the amount of the policy limit plus usually the cost of defending lawsuit. The price you'll have to pay for liability insurance depends on the size of your business and the specific risks involved. The good news is that liability insurance isn't priced on a dollar-for-dollar basis, so twice the coverage won't be twice the price.
There are few different types of Liability Policies:

A.    Product Liability Insurance- covers liability for any injuries caused by products you design, manufacture or sell. Product Liability Insurance covers you against unforeseen circumstances. Bad workmanship or defective products are not covered.
B.    Comprehensive General Liability (CGL) Insurance- coverage insures a business against accidents and injury that might happen on its premises, as well as exposures related to its products. For example, one of your clients slips on wet floor while visiting your office and breaks his leg. A CGL policy covers his claim against you. But let's assume that your company is a window manufacturer, with hundreds of thousands of its windows installed in many homes and businesses. If something goes wrong with them, general liability covers any claims related to the damage that results. CGL policies tend to have a lot of exclusions. Make sure you understand exactly what your policy covers and what it doesn't. You may want to purchase additional liability policies to cover specific concerns. For example…
C.    Errors and Omissions Liability (E&O) - this type of policy protects you in case you are sued for damages resulting from a mistake in their work. So if you are designing windows and for example the window leaks because of your design you may be protected by this type of insurance.
D.    Vehicle Insurance- this type of policy should cover cars and trucks you own but also employees’ cars and trucks when those vehicles are used for business purposes. Many states set minimum liability coverage, which may be well below what you need. Make sure you get enough coverage. If you don't have enough coverage, the courts can take everything you have, and then attach your future corporate income, thus possibly causing the company severe financial hardship or even bankruptcy.
E.     Workers’ Compensation Insurance- workers' compensation, which covers medical and rehabilitation costs and lost wages for employees injured on the job, is required by law in all 50 states. Each state has a law setting out what an employer must provide for workers’ compensation benefits. This type of policy is only required for employees, not for independent contractors.

When talking about Liability Insurance it’s important to mention the insurance company’s Duty to Defend.  Most policies state that the insurer has an obligation to defend the insured in a suit brought by a third party. For occurrences covered by the policy, a defense must be provided even if a suit is found to be groundless or false. Make sure the insurance you purchase contains this duty to defend.
3.     Other Types of Insurance.
There are also other types of insurance and depending on your location and other factors you might consider choosing one of these:

·                           Coverage Against Employees’ Theft- covers you if your employee steals from you.
·                           Crime Coverage- protects your company against burglary and robbery but also other thefts and loss or disappearance of property.
·                           Business Interruption Insurance- When your business property is damaged or destroyed this coverage will pay lost income while your business is closed as well as expenses you incur in order to keep your business going. 
·                           Disability Insurance- sometimes called "income insurance," can guarantee a fixed amount of income, usually 60 percent of your average earned income, while you're receiving treatment or are recuperating and unable to work. Because you are your business's most vital asset, many experts recommend buying disability insurance for yourself and key employees from day one.

III. Making a Claim.

When one buys insurance, one hopes that it will never have to be used. However, frequently the need to make a claim arises and there are many important things to remember about. To make a claim you need to:
·       Notify your insurance company immediately when you experience a loss, or have a lawsuit filed against you or your business. You should also notify the police of a theft or accident immediately.
·       Read your insurance policy to make sure what your responsibilities to the insurance company are.
·       Make a list of damages and any items lost, stolen or destroyed.
·       If possible, find receipts or proof of ownership for all your lost, stolen or destroyed items.
·       When facing a lawsuit from a third party, gather any information you may have on the incident or reason for the lawsuit.
·       Send written notice by certified mail to have verifiable proof of the date that you notified your insurance provider regarding a claim.
When you have filed a claim, be prepared to do battle with your insurance company. If you feel your settlement offer is not fair, schedule a time to talk with the claims adjustor and contact the customer service division of the insurance provider. Negotiating with your insurance company is always a good start to reaching a better settlement. Although, if you are completely dissatisfied with the final result, you may hire an attorney to help you with the negotiations, and if necessary to pursue a lawsuit or arbitration against insurance company.

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for over 25 years and has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and 7 other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Thursday, August 22, 2019


In California, an individual convicted of an infraction, a misdemeanor, or a felony and not sentenced to state prison can petition the Court for a dismissal or “expungement” of their record. Under Penal Code Section 1203.4, citizens can request a dismissal if they were given county jail time, probation, a fine, or a combination of those three types of punishment -- rather than being sentenced to state prison.

Upon receipt of a formal petition, the court may withdraw the person’s guilty or no contest (nolo contendere) plea, or even a guilty verdict, and enter a not guilty plea. If the court set asides and dismiss the conviction under Penal Code Section 1203.4, the individual is no longer considered to be “convicted” of the offense and their record will be changed to show a dismissal rather than a conviction.

This article explains how one obtains an expungement of their criminal record and what are the consequences of doing so.

When are is an individual eligible for a dismissal of a conviction?

One is eligible for dismissal of a misdemeanor conviction if:

The criminal defendant received probation for that conviction and:
·       they successfully completed probation or obtained early release;
·       they also have paid all restitution and other payments that were ordered as a term of probation;
·       they are not currently serving another sentence or on probation for another offense; AND
·       they are not currently charged with another offense.


You never received probation and:
·       Your conviction was a misdemeanor or an infraction;
·       It has been at least 1 year since the date you were convicted;
·       You have complied fully with the sentence of the court;
·       You are not currently serving another sentence;
·       You are not currently charged with another offense; AND
·       You have obeyed the law and lived an honest and upright life since the time of your conviction.

What is the effect of an expungement?

Once all convictions have been dismissed, there are various circumstances where the conviction cannot be considered by potential employers.  Under most circumstances, private employers cannot ask an applicant for a job about any convictions dismissed under Penal Code section 1203.4. So when applying for a job in the private sector, a person generally does not have to disclose a conviction if it was dismissed or expunged.

Also, in California, with certain exceptions, government employers and licensing agencies are supposed to treat a person the same as if they had never been convicted of any crime – if that conviction was dismissed.

If you are filing a petition under Penal Code sections 17(b), 17(d)(2), 1203.4, 1203.41, 1203.43, and 1203.49, you can use the Petition for Dismissal (Form CR-180).  Ask the local clerk if you need to submit additional photocopies of the petition and, if so, how many.  Ask if their local rules of court require you to serve copies of your petition on the district attorney or probation department.

Remember, you can only dismiss 1 conviction at a time. This means you must fill out a separate petition for each conviction that you want to dismiss, but you can file them all at the same time. If you are currently on probation, you will need to deal with that conviction first; then you can proceed with the others.

You need to mail or deliver in person to the Court your filing materials to the clerk of the superior court for the county where you were convicted. If required in your county, be sure to serve a copy of the entire petition and supporting documentation on the district attorney or probation department.

It’s very important to include any supportive materials such as letters of support, school diplomas or transcripts, and if applying for early release from probation, a letter to the judge explaining why you feel you should be released from probation early. At the time you file your papers, the clerk will set a hearing date.

You may be required to attend the hearing. Be on time and dress appropriate for court. The court cannot charge you a fee to file your petition, but the court may order you to reimburse the court, city, and county up to $150 each after the court decides your petition, whether or not your petition was granted.

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Saturday, August 3, 2019


In the first segment of this series, I discussed what to do if you are arrested by Immigration (ICE).  In short, don’t sign anything and you will likely be able to fight your deportation in court. 

Once you tell ICE that you want a court hearing, you also can ask for your release on bond, so you can be reunited with your family while your case moves forward.  Below, I will explain how to convince the immigration judge that you deserve to be free on bond, to make the bond as low as possible, and to get the bond paid and get out of immigration custody.

How is the bond set.

If a person is detained but eligible for bond, the government will often set an initial bond amount.   ICE under the Trump Administration has been setting bonds higher than in previous administrations or often dismissing deportation cases altogether.  We can expect that ICE under Trump will set bonds at $10,000 or higher, even for immigrants without any real criminal record.  But this can be lowered by an immigration judge.

In most cases, you have the right to ask the immigration court for a bond re-determination hearing.  The immigration court will then consider the arguments you make and often lower the bond set by ICE.

In setting the amount of bond, the judge will look at a number of criteria.  The most important criterion is whether the person is a “flight risk”; that is, whether he would likely come back to court if released.  In making that decision, the judge will consider factors which tend to show good moral character on the part of the individual held.  These factors include:

  • Relatives in the United States: does the person have relatives here who are in legal status?  Do they have a citizen or permanent resident spouse or child?

  • Employment: does the person have a regular job and income?

  • A residence: does the person have a place to live if released?

  • Immigration Court History: Has the person ever failed to show up in court on any of his prior criminal or immigration cases? Can they show the judge that they always went to court when required to do so in the past?

  • Tax Records: has the person paid his taxes in the U.S.?

  • Eligibility for Relief:  What immigration status does the person qualify for?  Do they have an immigrant petition filed by a relative?  Or can one be filed? Do they have a credible argument that they would fear persecution in their home country?  Do they qualify for some other status here?

How to Pay the Bond.

Once the bond is set, a relative or friend can post the bond if they can show that they are a U.S. citizen or lawful permanent resident.   That person must agree to be responsible for ensuring that the person attends any immigration hearing or interview whenever requested to do so.

The person posting the bond will need to know the last name of the person in ICE custody and their “A” number--the case number which begins with A followed by 9 numbers.   The bond can be paid with a cashier’s check from a bank, or a money order – not by cash or personal check. 

In San Francisco, the person paying the bond must present the money in person at the immigration office located at: 630 Sansome Street, 5th Floor.  Hours are: Monday – Friday, 8:00am to 3:00pm.

If you pay the bond directly to the government, the bond money will be returned to your family only when your court case is completed and only if you have complied with the court’s order, even if that order is to leave the country.

Next post on this topic will deal with how to fight and possibly win your deportation case in the Immigration Court.

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law over 25 years and has been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Sunday, July 14, 2019


Part 1: What to do if confronted by ICE

By Christopher A. Kerosky

          Once again, Donald Trump has declared his intention to start raids against our immigrant communities.  Immigration and Customs Enforcement (“ICE”) has formulated a plan to find and deport thousands of immigrants, and announced that it will be implemented starting this weekend. 

I’ve written the detailed description below as a guide for immigrants as to their legal rights and remedies when confronted by ICE.  Para leer en espa┼łol:

Part 1 covers what to do if ICE comes to your home. Part 2 of this article covers what to do if ICE comes to your workplace or approaches you on the street.   Part 3 discusses what steps to take if ICE takes you into custody.

          At your house

          ICE can enter your home in three situations: (1) if they have a warrant; or (2) if you give them permission; or (3) they think there is presently a crime being committed in your home.  If ICE comes to your house and knocks on your door, you do not have to open the door or let them in. Typically, to legally enter your home, ICE must have a search warrant or arrest warrant with your name and address on it.  A warrant is an order signed by a judge to search a place and/or arrest a person. 

If ICE comes to your home, you should ask to see a warrant. ICE must show you the warrant. If the officials do not have a warrant, you do not have to let them in or speak to them at all.  However, if you give them permission to come in, then they can legally enter your home and search it.

         The right to remain silent

          Whether ICE comes to your house and knocks on your door, enters your workplace, or even questions you in jail, you have the right to remain silent.  In other words, you do not have to provide your citizenship information to Immigration Service officials. You can just indicate that you do not want to speak to them. 

          An immigration official may not request evidence of your immigration status in your home or another private place without a warrant. Even if they have a warrant, you must only provide proof of your immigration status if you are in legal status. After showing evidence of your status, you still have the right to remain silent.

         The right to speak to an attorney
          Once you have shown evidence of your legal status, if you have it, you do not have to talk to officers further – it is up to you. In most cases, you may be better off remaining silent and talking to a lawyer first, depending on your situation. This is your right under the law.  If the Immigration Service asks anything about your political and religious beliefs, groups you belong to or contribute to, things you have said, where you have traveled or other questions that do not seem right, you do not have to answer them.

Thursday, July 11, 2019

Part One: What to do if you are arrested by ICE.

Yet again, Donald Trump has promised to start deportation raids against our immigrant communities.  It is important that people know they have the right to defend themselves and fight their deportation in court.  In many cases, it can result in an immigration judge deciding that the immigrant can stay in this country and even obtain permanent residence. However, if they accept their removal, they are typically barred from the U.S. for 10 years or more.

This series of articles will cover what an immigrant can do if they or their family member is arrested and put into deportation proceedings. 

Part 1: The Important Things to Know if you or your family member is taken by ICE.

Many people believe that if they are undocumented and arrested, then they have no choice but to go home.  That is simply not the case.  With skillful and thoughtful representation, many undocumented immigrants can successfully avoid deportation.

It is very important that undocumented immigrants and their families know what to do in this situation.  The important thing is not to sign any document which agrees to your deportation or voluntary departure.  Instead, get legal advice and it is very often the case that you can get bonded out of custody very soon.

How does one get a family member out of ICE custody once they’ve been taken? The answer to this question depends upon the situation.  The government is required to hold non-citizens in jail if they were convicted of certain very serious criminal charges.  If he was not convicted of any crime or if it was a misdemeanor crime, then usually the person can be “bonded” out of jail if the bond set by the court is paid.  The amount of the bond varies significantly depending upon the judge and the facts of the case.  The best thing is to get your relative out of jail, if you can, and then hire a lawyer to protect his rights in court. 

Even if the relative is bonded out of jail, he will be required to go to immigration court and explain to the judge will he should not be deported.  If you ignore the court case once he is bonded out, a deportation order will be issued by the court, the bond money will be lost, and he will probably lose any chance of ever becoming legal in the United States.

It is often possible to proceed with a claim for relief in court, such as cancellation of removal, asylum, adjustment of status, or other claims.  These arguments apply in many situations where the undocumented person arrested has family here legally or has been a victim of a crime, or a victim of domestic violence, or can prove that he would be harmed if he is returned to his home country. 

These will be covered in subsequent segments of this series.

Tuesday, July 2, 2019

JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY.  Today, a federal judge in Seattle blocked the Trump administration from denying bond hearings to asylum seekers.
US District Judge Marsha Pechman ruled that people who are detained after seeking asylum protection are entitled to bond hearings and the chance to be released from custody. "It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request," Pechman wrote.

The Justice Department announced a policy in April that some asylum seekers cannot be released on bond by immigration judge—even if they have already proven a credible fear of persecution in their home countries.  The policy would have effectively blocked immigration lawyers and immigrant rights advocates from asking judges to release detained asylum seekers on payment of a bond.

The judge ordered the Justice Department to resume bond hearings for asylum seekers within two weeks. 

Monday, June 17, 2019

If so, you are not the only one.

By Christopher Kerosky

Many North Bay businesses received a surprise in the mail recently: letters from the Social Security Administration (SSA), notifying them that certain social security numbers they reported for their employees do not match the SSA database.  This has created concern among many local employers and their workers, who fear this might be the first step toward an investigation by ICE. 

When these letters arrive, many undocumented immigrants choose to quit their jobs rather than face possible detention and deportation.

These so-called “no match” letters were common in prior administrations, but were discontinued by President Obama in 2009.  The Trump Administration announced that they have resumed the practice, sending out over 500,000 such letters since March.   Apparently, this was a result of the “Buy American, Hire American” Executive Order issued by Donald Trump earlier this year. 

Implications of getting a No-Match Letter.

No-match letters are issued when the employee’s name and Social Security number provided by the employer conflict with SSA records. According to the agency, about 10% of the over 250 million records submitted contain non-matching numbers.

This frequently happens when an undocumented worker presents a fake card to their boss because they cannot obtain actual social security cards under our federal laws.  When the employer dutifully submits the number to the government, the SSA notices the discrepancy and issues the letter.  There can be other explanations for the no-match such as typographical errors or mistakes in the SSA database.

The law is a bit unclear as to what employers are required to do in response.  SSA suggests the employer to talk with employees and attempt to resolve such discrepancies within 60 days. The SSA doesn’t require the employer to fire an employee whose number doesn’t match.  However, the Department of Homeland Security (DHS) contends the employer has the obligation to do so within a “reasonable” time period of having constructive knowledge that the employee is unauthorized to work—which may result from getting a no-match letter.  Yet it’s a violation of state and federal laws to discriminate against an employee based on nationality and wrongful termination could result in liability.

In short, each situation is different and employers must proceed carefully should they receive such an SSA letter.

Hospitality, Agricultural and Construction Industries Targeted

Those businesses most affected make up a large part of our North Bay economy: hospitality (including restaurants and hotels); agriculture (including wineries and vineyard management); and construction.  According to Sonoma County’s website, agriculture, construction and tourism make up about 20% of the county’s workforce and are major drivers of its economy. 

These are sectors of our economy that rely heavily on undocumented labor.  The United States has an estimated 7.8 million undocumented immigrants working or about 15% of the work force, according to the Pew Research Center.  But immigrants make up approximately 33% of agricultural workers, 32% of the hospitality industry, and 25% of construction workers.

It is pretty clear that these sectors of the economy have received the largest number of the “No-Match letters”.  According to the New York Times, approximately 50 growers and ag businesses in the San Joaquin Valley have received these letters recently, affecting almost 25,000 workers.  We don’t know how many County businesses who received the no-match letters, but I have talked to many local business owners that did.

Will Social Security share info with ICE?

It remains to be seen whether the SSA will communicate to ICE the names of employers or employees in response to no-match letters.  If so, this could result in audits of employers, the firing of many undocumented workers and potentially deportation proceedings against some of them.
Our country has long had a “Don’t Ask, Don’t Tell” attitude policy toward undocumented labor: the feds officially say it’s against the law, but they’ve intentionally looked the other way, knowing that these industries would suffer severe consequences if these laws were strictly enforced due to labor shortages. 

This may be changing now with the Trump Administration’s broad and aggressive anti-immigrant agenda.  “It’s just another tactic to further marginalize and scare our immigrant communities and their employers,” stated Congressman T.J. Cox (D.Fresno) in response to the SSA announcement. 

In fact, the only sensible solution is comprehensive immigration reform that addresses both the labor shortage in this country and the large undocumented population here.  At least for now, reform seems far away.  We’ll likely have to wait until at least 2021 for that, and maybe beyond.

Until then, employers should not be surprised if they get a letter in their mailbox from the Trump Administration. 

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” Magazine.  See 

WARNING: The foregoing is a summary generally discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case before filing any application or petition.

Opening a business in California- Part 5 Insurance for Your Business. This is the fifth in a series of articles written for the pur...