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10 Steps For Changing The Legal Name Of A California LLC

This article was originally published in Forbes. By: Doug Bend Business owners sometimes would like to change the full legal name of their California limited liability company (LLCs). The three most common reasons for changing the name of an LLC include: the products or services the LLC offers have changed, there has been a legal challenge… Read More

This article was originally published in Forbes.

By: Doug Bend

Business owners sometimes would like to change the full legal name of their California limited liability company (LLCs). The three most common reasons for changing the name of an LLC include: the products or services the LLC offers have changed, there has been a legal challenge to the name or the owners have thought of a better name.

There are typically 10 steps to changing the legal name of an LLC in California. 

1. Member Resolutions

First, you should review your operating agreement to see what the voting requirements are to change the legal name of the LLC. Most likely you will need written resolutions that are signed by the members who own a majority ownership interest in the LLC to document that a sufficient number of the members approve of the name change.

2. Amendment To The Articles Of Organization

When you formed the LLC, you filed articles of organization with the California Secretary of State’s Office. Those articles included the full legal name of your LLC. You will now need to file an amendment to the articles to change that name.

3. Statement Of Information

Once the amendment to the articles of organization has been approved, you will need to file an updated statement of information with the California Secretary Of State’s Office. This is a one-page filing that can be submitted on the Secretary of State’s website.

4. City Business Registration Certificate

You will also have to update the city business license to change the legal name of the entity.

5. Fictitious Business Name Statement

If you are conducting business under a name other than the full legal name of the LLC, you will need to file an updated fictitious business name statement with the county.

6. Publication Of The Fictitious Business Name Statement

Once you get the endorsed fictitious business name statement back from the county, you will need to have it published in a legally adjudicated newspaper.

7. California Employment Development Office

If your LLC is running payroll for its employees, you will need to update the Employment Development Office (EDD) of the name change.

8. Seller’s Permit

If the LLC collects sales tax, you will need to update the company’s account with the California Board Of Equalization. If you have any trouble, you can call the Board Of Equalization at 1-800-400-7115 and they will walk you through the process step-by-step.

9. IRS

You will need to work with your CPA to update the IRS of the LLC’s new legal name.

10. Vendors

Lastly, you will need to update all of the LLC’s third-party vendors. For example, you will need to update the LLC’s bank account and insurance policies to include the new legal name of the LLC.

You should consult with your attorney as your LLC might have different requirements, but this checklist is a good starting point for strategizing on how to change the legal name of your company. As you can see, numerous government agencies and vendors would need to be updated and so you should make sure that the new name is one you love much more than your LLC’s current name.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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HOW DERIVATIVE: A GUIDE TO FAN FILM PRODUCTION

By: Brandon Shelton I have recently been absolutely obsessed with Bo Burnham’s latest Netflix special “Inside.” There are several moments of relatability and genius, but one particular statement that keeps eating away at my soul comes from the carnival tune Welcome to the Internet: “Could I interest you in everything all of the time? A… Read More

By: Brandon Shelton

I have recently been absolutely obsessed with Bo Burnham’s latest Netflix special “Inside.” There are several moments of relatability and genius, but one particular statement that keeps eating away at my soul comes from the carnival tune Welcome to the Internet: “Could I interest you in everything all of the time? A little bit of everything, all of the time?” The Internet has rapidly gone from a wide-open plane of unfilled memory to being stuffed to the brim with more information and content than any mortal could ever possibly digest. With that rapid evolution comes the desire by others to add their own content, which oftentimes is largely derivative of other content that already exists (I mean, everything derives from Shakespeare anyways, right?).

Derivative Works

The concept of derivative content isn’t anything new to the world of fiction, nor is it exclusive to the Internet. There are plenty of unauthorized examples in literature, such as The Wind Done Gone by Alice Randall and 60 Years Later: Coming Through the Rye by John David California. However, the Internet has certainly provided a very easy to access platform upon which to submit derivative content, authorized or not. A prime example of such derivative content that has become far easier to produce and access is the fan film. Indeed, a recent favorite of my own was a short (surprisingly well done) X-Men film centered on the fan favorite character Gambit. Lest there be any doubt: this fan film was not an authorized MCU film.

Derivative Work Lawsuits

A recent, and very valid, question that was posed to me was: how can I avoid a lawsuit when creating a fan film?

As an initial matter, there is no way to “avoid” a lawsuit from anyone over anything. Anyone is allowed to file a lawsuit, absent some clear misconduct where the use of the legal system is being abused. If there is an owner of any copyrighted content, or its underlying creative aspects, such as its well-developed characters and storylines, they always have a right to bring a lawsuit if anyone is infringing on their rights associated with copyright ownership. Under § 106(2) of the Copyright Act, the copyright owners have the exclusive right to prepare and authorize others to prepare derivative works based on an already existing work of authorship. By creating an unauthorized derivative work of any work of authorship, you may already be in the territory of infringing on the rights of the copyright owners.

At this point you may be asking yourself: if the right to sue is so strong, how in the world is there so much fan fiction and fan film out there??? The answer is a bit complicated, but the short answer is: because the owners probably have allowed the derivative content to exist. Oftentimes copyright owners gladly allow fan-created derivative content to exist without any qualms, especially in the cases where the fan fiction doesn’t provide the creator with any commercial benefit and is appropriately attributed. Part of the thinking is that allowing robust fan interaction can only stand to benefit the commercial demand for the original works themselves. Additionally, a well-funded copyright owner will rarely win any new fans by quashing the creation of derivative fan fiction that doesn’t generate any income to the fan creator.

An example that comes to mind from my wee days in law school is the plethora of Harry Potter fan fiction available in every corner of the Internet. Author J.K. Rowling famously was flattered and gave her blessing for fans to develop and post any fan fiction online, provided that such derivative works were submitted without any commercial purpose.[i] Rowling is quite serious about the non-commercial purpose, as she successfully sued a creator of a Harry Potter encyclopedia.[ii]

One Limited Exception: Fair Use Doctrine

As with every conversation I have in describing the law to both of my fans (of which my mom is at least one), there’s always an exception out there. Section 107 of the Copyright Act provides that the creation of derivative works “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research, is not an infringement of copyright.” This is otherwise known as the Fair Use Doctrine. Part of the justification for Fair Use is trying to resolve the inherent conflict with the idea that the First Amendment of the U.S. Constitution allows for criticism and education, and the idea that a copyright holder should have the exclusive right to copy, use, and profit from the work.

Though Section 107 provides a pretty clear and explicit exception to the exclusive rights of the copyright owner, application of the Fair Use Doctrine is not always so clear. Courts will apply a four-factor analysis that considers:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.[iii]

If you’d like some good reading material on how courts view derivative works under the Fair Use doctrine, feel free to check out the 11th Circuit’s decision establishing that The Wind Done Gone was a parody work protected by the Fair Use Doctrine.[iv]

The Takeaway

For brevity’s sake, I’d just like to offer up some diatribes I have encountered throughout my career. One of the first attorneys I worked for was reluctant to rely upon the Fair Use Doctrine, primarily because it already establishes an admission that you are copying the original work to some degree, which isn’t a great place to start. However, if we are talking about clearly and purely critical works (for example, a news piece or documentary criticizing the work), Fair Use Doctrine is a critical tool used by filmmakers and journalists to allow for such criticism. In my work with documentary filmmakers, they lean as much as they can on the Fair Use Doctrine to allow use of a multitude of works in their final product, and their insurers specifically require a preemptive attorney input on Fair Use considerations to even allow distribution of the derivative work.

Obviously there are some substantial differences between a critical documentary and a fan film. If we are talking about a fan film that is not a parody (meaning it simply builds on the original work, and there isn’t a great argument that the derivative work is critical of the original), you will have to tread carefully. First and foremost, most copyright owners are going to take issue if you create the fan film with the purpose of deriving any kind of commercial benefit (i.e. getting paid for ads on YouTube). However, many might be willing to turn a blind eye if you simply make it for fun, without any for-profit goals in mind. If the underlying work itself is a very well-known work with a robust fan fiction community, it would be worth your while to see if there is any publicly available news or statements by the owner expressing approval of non-commercial fan fiction, or if there is already a large and well-visible community producing fan films or fiction.

If it is still difficult to glean whether or not the owner allows for fan works, it would also be helpful to see if the owner is particularly litigious on fan created derivative works. A simple Google search of the work itself plus “lawsuit” might provide some insight into this. Reddit forums and other postings might also be helpful to see what other fans have been able to safely create.

It also doesn’t hurt to ask. If the work is so far a relative unknown, you can always reach out to the publisher of the work, or the author themselves to see what their policy is on fan fiction and fan films. They will almost always be pretty clear about what their guidelines are in allowing fan created content. A good deal of publishers and authors will also provide a free, limited license to create such works, provided that the work itself is also offered up for free.

The TL;DR answer to the question posed is: there is not necessarily a way to prevent a lawsuit for a fan film, as anyone can file a lawsuit, but if you do a little research on the underlying work itself, you can give yourself a good idea of whether or not you will see any pushback from the copyright owners, or if they have already given their stamp of approval on fan-created derivative works. If your fan film is a parody that is clearly critical of the original work, there is definitely some protections afforded by the Fair Use Doctrine, but it is expensive to find out if you are right under that exception. For that reason, it’s a good idea to see what others have already done before you, or even reach out to the copyright holder.


[i] Waters, Darren. BBC News. Rowling back Potter fan fiction; available at http://news.bbc.co.uk/2/hi/entertainment/3753001.stm.

[ii] Eligon, John. NY Times. Rowling Wins Lawsuit Against Potter Lexicon; available at https://www.nytimes.com/2008/09/09/nyregion/09potter.html.

[iii] 17 U.S. Code § 107.

[iv] Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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Trademark Modernization Act: Providing New Tools for Trademark Applicants

By: Vivek Vaidya After years of fraudulent trademarks stacking up in the United States Patent and Trademark Office (USPTO) database, major reform is under way.  The Trademark Modernization Act will go into effect in December of 2021 to provide new tools for applicants to overcome certain refusals to their trademark applications. Specifically, the new processes… Read More

By: Vivek Vaidya

After years of fraudulent trademarks stacking up in the United States Patent and Trademark Office (USPTO) database, major reform is under way.  The Trademark Modernization Act will go into effect in December of 2021 to provide new tools for applicants to overcome certain refusals to their trademark applications.

Specifically, the new processes will focus on challenging trademark applications and registrations that contain inaccurate use claims. The hope is that business owners in the U.S. will make smarter and more honest branding decisions for their products and services.

The TMA will set forth the following new procedures:

Two new post-registration proceedings can be filed with the USPTO Director Institute, in order to request the cancellation of unused trademarks.

1) Expungement: one may request the removal of specific goods/services in a trademark registration because the registrant never used the trademark in US commerce.

2) Reexamination: one may request the removal of specific goods/services by arguing that the trademark was not in use by a particular date as alleged by the registrant, usually by showing the specimen showing the trademark in use was not accurate.

After initiating either of these proceedings, the registrant will have an opportunity to respond with evidence that the information in their trademark registration is accurate.

Changes to the Letter of Protest Procedure.

The TMA codifies the Letter of Protest process, which has been long standing but seldom used.  A Letter of Protest allows third parties to submit evidence prior to an application’s registration that challenges its eligibility to be registered.

Changes to the process and rules around seeking injunctive relief.

As per the TMA, a trademark owner who is seeking injunctive relief (a fancy term for getting someone to stop doing something) is entitled to an arguable presumption of irreparable harm upon a finding of infringement based upon the facts of the case. This rule will help trademark owners enforce their rights against infringers in federal court.

Conclusion

The TMA provides trademark applicants with new tools to challenge trademark registrations that are blocking against their applications.  Instead of costly and lengthy Opposition and Cancellation Proceedings, the expungement, reexamination and Letter of Protest procedures will make it easier and more efficient for rightful trademark owners to establish their rights through registration with the USPTO.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Six Options To Negotiate With Your Commercial Landlord During COVID

This article was originally published in Recreate. By: Doug Bend These are tough times for business owners. In addition to decreased revenues, many have discovered their commercial leases do not excuse them from having to pay their full amount of rent during COVID.  Even if there is a force majeure provision that might excuse the… Read More

This article was originally published in Recreate.

By: Doug Bend

These are tough times for business owners. In addition to decreased revenues, many have discovered their commercial leases do not excuse them from having to pay their full amount of rent during COVID. 

Even if there is a force majeure provision that might excuse the tenant from having to perform some of its obligations, the tenant is still typically responsible for paying rent.

We sat down with Benjamin Osgood, the Founder & Managing Director of Recreate Commercial Real Estate,  who contributed insights as our offices have been collaborating on how to help our clients navigate these tough waters.

We have found there are six options to consider when negotiating with your landlord:

1. Walk Away From The Lease.

You can try to negotiate the early termination of your lease, but your landlord is not likely to agree unless you pay an early termination fee and forfeit your deposit.

The early termination fee would likely cover the anticipated expense of the space being empty for a period of time  until a new tenant can be found and the landlord’s unamortized lease expenses such as leasing commissions and tenant improvement construction costs. 

2. Abatement of Rent.

You could also try to negotiate for your rent to be forgiven for a specified period of time until your revenues will hopefully be back up or you can more fully use the space.

That being said, many landlords are not willing to agree to rent abatement because from their perspective they still have the same amount of expenses for the space. In addition, you most likely agreed in your lease that rent would still be owed even during a pandemic.

A fallback position is to offer to agree to an extension of your lease for the same amount of time for a pause on your rent. For example, your landlord might be more willing to agree to you not paying rent for the next three or six months if your lease is extended for the same amount of time.

3. Deposit Burn Down.

Another option is to ask your landlord to apply all or a portion of your deposit to your rent, especially if you’re nearing the expiration of your lease.

Your landlord may push back because your lease most likely explicitly provides that the deposit is not intended to be used for rent.

If so, you could offer to replenish the deposit within six or twelve months should there be substantial lease term remaining.

4. Reduced Rent.

Some landlords have agreed to a reduced amount of rent based on the amount of the tenant’s reduced revenue. 

Your landlord might prefer to reduce your rent for three or six months than risk you going out of business and having to find a new tenant.

5. Deferred Rent.

You are likely to have the most success negotiating deferred rent than abated or reduced rent.

For example, you could ask your landlord to not charge you rent for the next three or six months and for that amount of rent to instead be added to your rent in equal increments over the following six or twelve months.

It might be easier for you to make those catch up payments once revenues have increased when there is a widely distributed vaccine or the number of people who are infected has dramatically decreased. 

6. Tenant Improvements.

Lastly, if you are negotiating a new lease you could ask for an additional tenant improvement allowance for installing high quality air filters, signage and other measures that can help reduce the risk of infection. 

This could be a win/win as such measures could help decrease the potential for a successful lawsuit for negligence against both you and your landlord by an employee or a visitor.

What Perspective Does Your Landlord Have?

We have found that landlords are likely to have one of two perspectives:

(i) No Rent Change.

Some landlords are not willing to negotiate the amount of rent because their expenses have not decreased.

In addition, they believe the tenant should be required to meet its contractual obligations to continue to pay the full amount of rent.

(ii) Some Rent Or Delayed Rent Is Better Than No Rent.

Other landlords recognize that if they are not flexible the tenant might have to close down and that some rent or the delayed payment of rent is better than no rent.

You cannot control which of these perspectives your landlord might have, but by being flexible and presenting a variety of the options outlined in this article your landlord is more likely to agree that one of the solutions is fair for both parties during these uncertain times.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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What is California’s Business Property Statement?

By: Doug Bend Businesses in California are required to file a business property statement (Form 571-L) with their County Assessor by August 31st of each year if: (1) the County Assessor’s Office sends the business a notice to file the statement or (2) The business has taxable business property with a total cost of $100,000… Read More

By: Doug Bend

Businesses in California are required to file a business property statement (Form 571-L) with their County Assessor by August 31st of each year if:

(1) the County Assessor’s Office sends the business a notice to file the statement or

(2) The business has taxable business property with a total cost of $100,000 or more.

The business property statement includes details of the cost of the company’s equipment, supplies, improvements and fixtures.

We recommend you contact your CPA if you need help filing the business property statement. 

If you are not already working with a great CPA, please contact us at info@bendlawoffice.com and we would be happy to make a recommendation.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Contractual Language of Love: Ensuring Compliance for Dating Service Contracts

By: Brandon Shelton Several years ago, before everyone from third graders to your grandparents had the world wide web at their fingertips, the single mingling population had but one option to search for a mate: walk out into the world and find that person. That’s not to say there weren’t other modified versions of that… Read More

By: Brandon Shelton

Several years ago, before everyone from third graders to your grandparents had the world wide web at their fingertips, the single mingling population had but one option to search for a mate: walk out into the world and find that person. That’s not to say there weren’t other modified versions of that option, such as blind dates set up by a friend or socialite matchmakers, but the vast majority of our quests for companionship relied upon chance and fate that you would run into someone that complimented you in just the right way.

The modern world is quite different. The birth of the internet became an opportunity for companies to create technology to bridge the gap between you and that person. Indeed, the emergence of the dating app culture has all but eliminated the reliance upon meeting via happenstance. In this world, perhaps you have had the foresight to see a specific gap in the dating world, and you are certain that your idea for an online dating service will be one that substantially disrupts the dating services market. If so, by all means, you should pursue that endeavor. However, in doing so, you should be aware of a lesser known law in California governing dating services.

In particular, California Civil Code Sections 1694-1694.4 provide rules around how dating services may engage with its customers. Assuming your business engages with its customers through a “dating service contract,” which could be interpreted by a court rather broadly, several subsections of these statutes relate to what must be included in the contract itself. Under Section 1694.1(b), such dating service contracts must include “in close proximity to the space reserved for the signature of the buyer, a conspicuous statement in a size equal to at least 10-point boldface type, as follows:

“You, the buyer, may cancel this agreement, without any penalty or obligation, at any time prior to midnight of the original contract seller’s third business day following the date of this contract, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect. This notice shall be sent to: (Name of the business that sold you the contract) (Address of the business that sold you the contract).””

Cal. Civ. Code § 1694.1(b).

This language relates to a mandatory three-day “cooling off” period that would allow your customers to cancel their dating services contracts. The idea is that customers of dating service providers should have the ability to rethink whether or not they feel the need to pay for such services (even if that is the cultural norm at this point).

Additionally, you must also include language that a buyer or their estate should also have the ability to be relieved of any payment obligations in the event of death or disability, and further must have the right to be reimbursed for any unused prepaid services in such an event. Cal. Civ. Code § 1694.3(a). You must also give the customer a right to cancel if they move when the move renders the services unfeasible. Cal. Civ. Code § 1694.3(b). In addition, you must include your company’s address conspicuously on the first page of the contract. Cal. Civ. Code § 1694.2(c).

While there is some caselaw out there that suggests a court may expect a customer to actually benefit from these provisions in order to bring a successful claim, the statutes are written in such a way that could very well invalidate your entire contract if you fail to include that language. Under Section 1694.4(a), “[a]ny contract for dating services which does not comply with this chapter is void and unenforceable.” These statutory requirements are also not available to any waiver. Cal. Civ. Cod § 1694.4(e). You should be very careful and deliberate in writing any contract for dating services, whether they be in person or provided online. In the case of online dating services, you will likely want to make sure that you specifically direct your users’ attention to your Terms of Service, perhaps by a click through screen at the time of engagement, and include the language and terms required by Sections 1694-1694.4. There are several other limitations imposed by these chapters, for which you should seek an attorney’s assistance in interpreting to ensure full compliance, as a failure to do so could completely void your contract, leaving you without any recourse in anticipated payments.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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How To Dissolve A California Corporation

By: Doug Bend So you need to dissolve your California corporation?  You should consult with your attorney and CPA as the steps can vary from company to company, but there are typically twelve steps to dissolve a California corporation. 1.  Approval Of The Board Of Directors. A majority of the board of directors needs to… Read More

By: Doug Bend

So you need to dissolve your California corporation?  You should consult with your attorney and CPA as the steps can vary from company to company, but there are typically twelve steps to dissolve a California corporation.

1.  Approval Of The Board Of Directors.

A majority of the board of directors needs to pass a written resolution approving the dissolution of the corporation.  

2.  Approval Of The Shareholders.

If shares have been issued, a majority of the outstanding shares will also need to approve the company’s dissolution in written resolutions.

3.  Notice of Dissolution To Creditors.

If the company has any creditors, it should provide them with notice of when claims must be submitted for payment to be considered.

4.  Certificate Of Dissolution.

A certificate of dissolution will then need to be filed with the California Secretary of State’s Office. 

5.  Discontinued Registered Agent For Service Of Process Services.

If you are using a third party service provider as the corporation’s registered agent for service of process, you should notify them of the dissolution so you do not continue to get charged for the service.

6. File Declaration Of Closed Business With The City.

If the corporation is registered with a city, most cities require that the business registration be inactivated.  For example, if your corporation is registered to do business in San Francisco, a Declaration of Closed Business would need to be filed.

7.  File An Abandonment Form For Your Fictitious Business Name Statement.

In addition, most jurisdictions require you to file a form notifying the county that you will no longer be using any fictitious business names that you registered. For example, in San Francisco you would need to file a Statement Of Abandonment Of Use Of Fictitious Business Name Statement.

8.  Cancel Any Other Licenses And Permits.

You will also need to cancel any additional licenses or permits, such as your California Seller’s Permit and your registration with  the Employment Development Department.

9.  IRS Form 966.

Within 30 days of the board of directors approving the dissolution, IRS Form 966 must be filed.

10.  IRS Forms 8594 and 4797.

If the dissolution involves the sale or exchange of corporate assets, IRS Forms 8594 and 4797 may also be necessary.

11.  Final State Tax Return.

You will need to work with your CPA or other tax professional to file a final state tax return.  You will also need to file any delinquent tax returns and pay any owed taxes.

In California, the Franchise Tax Board will continue to assess an annual franchise tax until the corporation has filed a final tax return with the FTB.  You should indicate it is the final return by checking the box that it is the final return and writing “final” on the top of the return.

12.  Final Federal Tax Returns.

Lastly, a final federal tax return needs to be filed for the corporation.  Like the state tax return, you should indicate on the form that it is the final return for the company.

For many companies these are the steps to officially close down a California corporation, but please contact us at (415) 633-6841 or info@bendlawoffice.com to make sure no additional steps are required as each situation is unique.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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