Robert Gates ERSKINE & TULLEY, PC

 220 Montgomery Street, Suite 303 

San Francisco, CA 94104  

415-392-5431, EXT. 202415-392-1978

bob@erskinetulley.comhttp://www.erskinetulley.com 

Biography

• Profession: Real Estate and Business Attorney, Formation, Operation, Litigation

• Born: Cedar Rapids, Iowa

• Education:      –    Occidental College, Los Angeles, CA, A.B. Economics, Math–    University of Michigan Law School, Ann Arbor, MI, J.D. Law– High School and College Swimmer

•  U.S. Peace Corps.:Philippines, Elementary Mathematics Teacher

• Volunteer Legal Services Program (“VLSP”): Early Settlement Program Judge (“ESP”), Bar Assn of SF (“BASF”)

 

Approach to a Legal Problem/Representation

 1. Obtain the “facts” and documents

  --  Chronology important   --  E-mails count!!  Can create an enforceable contract 2. Identify the legal issues, “downsides” and “high ground” 3. As a “team” with the client, develop a position and strategy, including

  litigation, if necessary 4. Assign roles, steps in process to achieve the agreed upon goal 

Key Elements in a Service Contract 

• 1. Specific description: – scope of services– time frame– fee structure

• 2. Limitation of liability:  Sample Clause:  “Scope of work limited to matters agreed upon and in no event

shall we be liable for lost time, lost profits or other claims for consequential damages.” 

•  3. Attorneys’ fees: (by contract, otherwise not recoverable) – Sample Clause:  “Invoices due on presentment and commercial account

balances shall bear interest at 1-1/2% per month if not paid within 30 days.  In the event of dispute, the prevailing party shall be entitled to recover all costs and reasonable attorneys’ fees.” 

– Document, document, document, even if note or e-mail.  Don’ t let “fear” prevent you from communicating regularly to avoid misunderstandings.  Silence can be acquiescence!! 

Business Organizations

1. Sole Proprietorship, Fictitious Business Name, Regisster SF Tax Collector for S.F. Business Tax.

2. General Partnership, Filing with Secretary of State optional, 4 key principles:

1. “Money In” – Amount of capital contributed

2. “Money Out” – Salaries, Distributions of Profits

3. “Control” – Management, who decides if deadlock

4. “Exit” – Buy- sell, right of first refusal if dispute

Business Organizations

3. C-Corporation, Articles of Incorporation, Secretary of State, Salaries

4. S-Corporations, same Articles, Election filed

with IRS, can distribute profits without FICA, etc. (Wayne Allen Cameron)

5. Limited Liability Company, LLC-1. Secretary of State, Operating Agreement with same 4 Key Principles

Recent Success Stories• 1. Commercial Lease Modifications:

• 4 Rent Reductions for Landlord, 6 months to 1 year• 1 Space and term reduction for Tenant

• 2. Commercial Lease Enforcement: for Landlord, potential loss of Guarantor/individual liability – “Who’s ‘Da Lessee?” is very important

• 3. Defense of “Partition Action:” 2 daughters co-sign loan for purchase of residence by mother, named on Deed: 1 daughter sues claiming 1/3 ownership of property: defense of lack of contribution to equity, “resulting trust” and related causes

• 4. Purchase of “Triple/Quadruple Net” Investment Properties– Tire Store, Goodyear, Union City, CA, $1.2 million all cash– Wells Fargo Ground Lease, Grand Prairie, TX, $2.174 Million, Loan $1.270

Million– Review and negotiate: Letter of Intent (“LOI”), Purchase and Sale Agreement

(“PSA”), Life Ins. Co. Loan, Closing: Review Title, Phase I Environment, Lease