There has been an increased interest in subpoena and business registration information since the Lively vs. Baldoni lawsuit began as a hot topic on social media spaces such as YouTube. Cases of Note will attempt to breakdown some of the information that is being misreported or appears to be completely unaddressed.
Without a Crystal Ball, LLC is a digital content and news outlet on YouTube
Subpoenas In New York
TO SUBPOENA DOCUMENTS OR RECORDSIf you require an individual to produce a record or document necessary for your case, you may apply to the Clerk of the Court for a Subpoena Duces Tecum or a writ commanding a person to produce certain designated documents or evidence. Attorneys do not necessarily have to go through the court clerk nor file a case to subpoena documents.
Why not? According to NY Civil Practice Law and Rules - CVP § 2302(a), "Subpoenas may be issued without a court order by the clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action, an administrative proceeding or an arbitration, an arbitrator, a referee, or any member of a board, commission or committee authorized by law to hear, try or determine a matter or to do any other act, in an official capacity, in relation to which proof may be taken." Of course, there are limits to this such as health records.
Either party in a case may apply for a subpoena for records up to 48 hours before the scheduled trial date. Service of a subpoena for records may be done by any person (including a friend or relative) who is 18 years of age or older. A party to this action can NOT serve a subpoena. The person who serves the subpoena must complete an Affidavit of Service and file it with the Court.
When the Subpoena Process is Abused
Annual Franchise Tax
Either party in a case may apply for a subpoena for records up to 48 hours before the scheduled trial date. Service of a subpoena for records may be done by any person (including a friend or relative) who is 18 years of age or older. A party to this action can NOT serve a subpoena. The person who serves the subpoena must complete an Affidavit of Service and file it with the Court.
When the Subpoena Process is Abused
An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process not justified by the underlying legal action. In common law it is classified as a tort distinct from the intentional tort of malicious prosecution.
Does the Subpoena has to be Registered in the State it is being Enforced In? No.
Why Vanzan, Inc. and Jonesworks, LLC are registered in California
Vanzan, Inc issued the subpoena to Joneswork LLC but is being touted as illegal somehow by internet sleuths. Both companies are headquartered elsewhere, which would mean they would have to register as a foreign entity. Foreign entity registration in California is required if you engage in financial transactions from a physical location inside the state. It does not apply to companies selling digital goods to California residents from another state or businesses that ship physical goods from a physical location outside California. They are required to have a registered agent for process serving purposes.
Why? It would be ridiculous for California residents to have to get a subpoena from the state where a business is headquartered. Legal action is initiated from where the moving party resides or where the transaction took place. Sadly, this was reported as necessary by one outfit.
FOREIGN ENTITY REGISTRATION IN CALIFORNIA
How to Register a Foreign Entity in California?
To register a corporation as a foreign entity in California, a $15 application fee and a $100 filing fee are charged. LLCs pay the $15 plus $70 to file the Foreign Registration Statement and Certificate of Good Standing. Those are your initial costs to obtain an official foreign entity classification, but there may be additional costs on top of that. This is not a cost specific to a California foreign entity registration but a cost of doing business in another state.
To register a corporation as a foreign entity in California, a $15 application fee and a $100 filing fee are charged. LLCs pay the $15 plus $70 to file the Foreign Registration Statement and Certificate of Good Standing. Those are your initial costs to obtain an official foreign entity classification, but there may be additional costs on top of that. This is not a cost specific to a California foreign entity registration but a cost of doing business in another state.
The Registered Agent
Your registered agent must be based in California, so you can’t use the agent you hired in your home state. There are several registered agents to choose from. Research them carefully. The cost for a registered agent could range from a few dollars a month to several hundred dollars per year. Take your time and examine all your options.
The annual franchise tax is $800, due within ninety days of registering your business as a foreign entity in California. It’s also due once per year after that. You’ll want to be prepared for this before you file papers with the Secretary of State’s office. Move forward with your foreign entity registration only when you know your business can be profitable.
Penalties for Not Completing Foreign Entity Registration in California
There are consequences for not completing a foreign entity registration when you open a transactional business in California. You can avoid these by carefully studying the factors that make you a foreign entity and the exceptions to the rule. You should also contact the Secretary of State’s office to clarify your status. Here are some of the consequences you'd face if you don't register your business:
- Fines and Penalties
- Loss of Legal Protection
- Surrender of Certain Rights
- Ineligibility for Licenses and Permits
- Ineligibility for Contracts with California Entities
- Damage to Your Reputation as a California Business