Weird Japan Interlude: The Curious Case of Detective Butt

I am reminded there is more to life than lawsuits and childcare and learning how well the Second Law of Thermodynamics--i.e., the entropy of a system always increases, the inexorable trend in the universe is toward disorder--explains the experience of managing and retaining a restaurant staff. We can always return to Japan, the country that produces the "Moist Diane" line of hair-care products, and it is amazing. 

Last week, a small but very satisfying slice of Japan arrived in my house. Hiroko went kids book shopping in Kinokuniya, a Japanese bookstore in SF Japantown, and came back with the delightfully weird Detective Butt (Oshiri Tantei in Japanese, and in some places translated as The Butt Detective or The Bum Detective). I couldn't read the title when Hiroko thrust it in front of me, but I could see what was on the cover. 

I did a double-take.  I said to her, "is his head really a . . . butt?"  "Yeah," she said, "his name is Detective Butt." And so it is, reader, so it is. 

Only in Japan. Japan is an amazing filter of foreign culture. Here, the input is Sherlock Holmes. The output is Detective Butt. Also, should we be surprised that of the two translations currently on the market, one is French? The other is Korean.

Detective Butt, believe it or not, is a completely serious and very smart book. It's a Japanese kids repackaging of Sherlock Holmes, wherein the Holmes character just happens to have a butt crack in place of a nose and mouth (although I presume there's a breathing apparatus buried in there somewhere). But otherwise he's completely Holmes: logical, sophisticated, intense and intellectually rigorous. His eyes (one on each cheek) are fierce. The book takes kids through a surprisingly thorough investigation of a candy theft from a sweet shop. It forces them to examine evidence and identify witnesses on the way to figuring out who did the crime. Detective Butt is joined by a cast of cute characters, like a dog policeman and something that looks like a cucumber mated with a balding, goateed middle-aged man. There's even a scene in a ramen shop!

Perhaps you've started to wonder where the punchline is, am I right? I mean, why is his head a butt? Is that part of the story? What's the point of the whole thing? That's what I asked Hiroko, at least. "It's just that his head's a butt," she responded. So that's how it is.

And that's where we come to Japan, possibly the only country in the world where Detective Butt could not only be created, but end up a bestseller. My other comment to Hiroko was to the effect that there is something so completely Japanese about this book. Like, if some nation is going to make a book like this, it's of course going to be Japan. She agreed. 

But why do we think this? What's so Japanese about it? Sure the animation style is definitely Japanese, but it's more than that. It's the book's ability to make the butt/head so conventional, so incidental to the story. The whole thing is just so matter-of-fact. In this world, there's nothing unusual about a man with a butt for a head. The butt is unremarkable and unthreatening. It's just human anatomy, it doesn't have to be sexual or fecal.

Makes Complete Sense. Two Butt Detectives, Japan (L) and America (R). The one on the right is what you find if you search "Detective Butt" on Google.  If you want the one on the left, try searching "Oshiri Tantei."

Japan is a country where the urinal stalls on trains sometimes have a see-through window rather than a "vacant/occupied" sign. People would freak out in America. To see the back of a man peeing on public transportation would certainly herald the End Times, I have little doubt. 

On my first trip to Japan 13 years ago, we were in Tokyo Station the morning after I arrived. I announced a need to use the bathroom. Hiroko said "do you know what's in there?" She laughed and called out "good luck!" Inside, I found myself face-to-face with a squat toilet. What madness is this? What am I supposed to do with that? Sensing my obvious confusion, a cleaning lady grabbed me by the shoulders and thrust me toward the next stall, which housed a western toilet. In the end, I'm not sure which part surprised me more: that squat toilets were a thing, or that a lady was in the men's room tidying up in and directing confused tourists to the proper facilities.  

And let us not forget about the toilet slide museum exhibit where, according to Huffington Post, children "are greeted by cartoon stools and singing, interactive toilets that guide them through lessons about what feces are made of, where they go and how different toilets are used around the world."  Oh, and the human body exhibit where museum-goers walk into a giant inflatable butt.

I repeat, completely different sensibilities.   

Scenes from Detective Butt.  

It's this innate Japanese neutrality toward its potentially scatological subject matter that makes this book possible. Combine that background with the Japanese ability to make pretty much anything cute (see, e.g., poop emoji and toilet/butt museum exhibits, supra), and Detective Butt starts to appear more inevitable than anything else.

Brilliantly, Detective Butt sustains the joke with barely a wink at the reader until our sleuth finally corners the culprit (a pig) in a gritty back alley at the end of the story. Now comes the punchline: Detective Butt deploys his secret weapon--a potent blast of facial flatulence--to disable the crook. So a butt is a butt after all.  But even then, as soon as the air is clear, Detective Butt is back to his life of sophistication, soaking in a hot bath, then enjoying tea and potato cakes in his bathrobe.    

When I told Hiroko I could imagine Detective Butt as a whole series of books, she informed me that there are already seven of them! Of course there are.  

Google Translate! While searching, I found this Japanese bookstore page announcing a Detective Butt event. Clicked translate, and voila, this!

It's a Fox, It's a Cat, It's a Shiba Inu

The Shiba Inu, the iconic Japanese dog with pointed ears and a curly flourish of a tail, is a magical creature. It is a dog possessed of almost feline characteristics, fastidious, quiet, sensitive, refined, elegant, and somewhat aloof. There is nothing slobbery about the Shiba, no rolling around in shit. On walks, puddles are delicately avoided. Its stature and proportions are those of a much larger dog, but in a house dog sized body. It's insanely cute, without ever being silly. Everybody thinks it's a fox. And have you ever seen the Shiba puppy cam?

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Shibas in the Garden. Momo (L) and Toro (R). 

When we got our first Shiba (Toro) eight years ago, Shibas were a relatively new phenomenon here in the U.S. Nobody knew just what he was, and countless people asked about him when we were out and about. We heard "he looks just like fox!" everywhere we took him. Once we were strolling through a small park at the base of Mt. Shasta, the volcano towering above us and rainclouds in the sky as dusk approached. The park was almost empty, except for us and little boy and girl with their mother.  After we passed them we could hear their children's voices arguing. "It's a fox," said one. "No, it's dog," said the other. "No, it's a fox!" 

Maybe it's because we rarely go out anymore, having become hermits in our life of ramen and toddler mayhem, but it seems people ask about the dogs a lot less now than they did five years ago. I think breed recognition has grown significantly, so fewer people feel the need to comment on their foxy looks. Now I see Shibas around all the time here in the Bay Area. Two years ago, I had dinner with a friend in New York, who told me she'd never seen a Shiba there. But it's definitely a question of whether or not you're looking. The next morning I went out to do some exploring, and spotted five of them in the Lower East Side, all before lunch! 

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When we made the abrupt, almost spontaneous, decision to start our ramen business two years ago, the Shiba Ramen name was all but set. Just hours into the project, we were confident enough to buy the domain name shibaramen.com as our very first corporate act. We never really talked about other names. We just kind of understood this was it. And of course this was it! What other name could there be? We're just wild about our dogs.

Let's learn a bit more about this amazing animal and companion, from its ancient origins to the ideal orientation of its majestic tail.

Japanese Dogs

The Shiba Inu is the smallest of six native Japanese breeds of spitz-type dogs, the others being the Shikoku, Kishu, Kai, Hokkaido, and Akita. It has its origins in prehistory, its ancestors coming to Japan with immigrants from the Asian mainland beginning in around 7000 B.C. By 200 B.C., continued interbreeding of the ancient dogs with more recent immigrant breeds produced a dog similar to the modern Shiba: small size, pointy ears, curly tail. In the 7th Century A.D., the imperial court established a dogkeeper's office to help maintain the native dog breeds as an important part of Japanese culture. Through the medieval period, Shibas were bred by Samurai for hunting deer, wild boar, and small game. Three regional sub-breeds of Shiba ultimately evolved: the San In Shiba, Mino Shiba, and Shinsho Shiba. 

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Six Japanese Dogs. Clockwise from upper right: Hokkaido, Kai, Kishu, Shikoko, Shiba, and Akita. All are named after the region of origin, except the Shiba.  Image from http://obaka.atja.jp/. 

World War II almost made an end of the Shiba. Due to bombing, food shortages, and a post-war distemper epidemic, the breed was almost wiped out. The surviving members of the three Shiba strains were bred together to produce the modern Shiba Inu. 

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Modern Shiba. After WWII reduced the Shiba to near-extinction, the survivors of the three regional sub-breeds were combined to give us the Shiba we know today.  Image from My First Shiba.

What a Tail!

In our Shiba Ramen logo (which you now understand is not a cat!) we chose to emphasize two features of the Shiba: it's pointed ears and curly tail. These twin traits stand out when you see a Shiba for the first time, the tail especially. According to the American Kennel Club breed standard, the Shiba's tail "is thick and powerful and is carried over the back in a sickle or curled position. A loose single curl or sickle tail pointing vigorously toward the neck and nearly parallel to the back is preferred. A double curl or sickle tail pointing upward is acceptable." I now appreciate what this means. Our younger Shiba, Momo, has the "preferred" tail, a loose single curl that drapes elegantly along her back. 

Our older Shiba, Toro, has the latter (i.e., merely "acceptable") kind of tail. It's tightly curled, sits up on his back, and resembles a cinnamon bun. It's high on cuteness factor, but it can't fully unfurl and has a limited range of motion. When he wags his tail, the wound-up tail clicks back and forth on his back. His tight tail was at least one reason the breeder didn't keep him to show. Nevertheless, it is a pretty amazing emotion-conveying tool. When he drops his tail 90 degrees, such that it hangs parallel to the ground with core still coiled, it's a sure sign he's nervous.

The Shiba ears, meanwhile, are incredibly soft and velvety, and are at least as expressive as the tail. They can lower into a high-cuteness airplane-like position or, like a satellite dish, they can rotate around a vertical axis to pick up sounds coming from behind. 

Our abstract logo fails to pick up on one significant Shiba feature: it's coat and markings. The Shiba comes in four color varieties: red, sesame, black & tan, and cream. Red is the most common. If you've seen a Shiba, odds are it was red. The first three colors are the only ones accepted in competition. According to the AKC, cream coloring "is a very serious fault and must be penalized." Good grief, I say to that, but whatever. The apparent issue is that the cream Shiba doesn't have urajiro markings--i.e., white color on the underside of the dog from the muzzle through the tail.

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Four Flavors of Shiba. Black & Tan, Red, Cream, and Sesame (L to R).  Photo credit here.  

Toro, My Personal Stalker

The Shiba temperament is different from the other dogs I've experienced. There's an aloofness and independence in the Shiba; it is not a lapdog. But that doesn't mean it doesn't want to be close. It wants to be next to you, not on you. It wants to interact on terms of its own choosing. When Toro arrived as a four-month-old puppy, he was unlike any puppy I'd met. Cautious, nervous, even depressed by his changed circumstances, it took a long time before he warmed up to us. Eight years later, he still only allows himself to be handled in certain ways, but the strength of our bond is undeniable. He is near me almost all the time. He's the most needy kind of aloof you can imagine. 

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Momo is a bit different. She's not the nervous type, and doesn't need to be in the same room. But she enjoys--and sometimes even initiates--physical affection. In a demure Shiba sort of way, she'll come up and poke you with her nose, inviting a pet. Where Toro was something of a basket case when he arrived, Momo bounded out of the crate and got straight to the good times. Where Toro doesn't bark, Momo thrusts out her chest and runs around the house and yard throwing around her tough girl bark at every squirrel and passing dog. Not uncommonly for Shibas, both dogs arrived as 3-4 month-old puppies essentially housebroken. Shibas really want to be clean.  

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What a Stud! Taro, father of Toro and grandfather of Momo. Great logo inspiration.  

The personality difference we see in our dogs may be a reflection of male vs. female Shibas generally. Toro has had a lot of anxiety issues over the years, and under certain circumstances can be prone to dog-dog aggression. Last year when my mom's male dog visited for a couple months, Toro was aggressive with him when food was around, especially when my mom was doing the feeding. But as soon as we learned Toro needed to feel like the alpha around her (he already was with me), so he should be fed first, the problems diminished. There are lots of reports of male Shibas being difficult. Momo, on the other hand, isn't prone to mood swings or any type of aggression. Her personality is light and eternally good-natured. Toro's foibles aside, both dogs are remarkably gentle around people, kids included.  

To learn more about the Shiba Inu, click here, here, here, or here.

The Ramen Lawsuit II: The Elements of Negligence

Shiba Ramen's negligence lawsuit against its architect was a rare opportunity for me to be a plaintiff. In my day job as a litigator at a large firm, I've worked on a ton of different cases: mortgage banking, securities fraud, patent and insurance disputes, and the list goes on. But I almost always represent larger corporate defendants in these cases. When I do represent a plaintiff, it's likely a corporate plaintiff suing another company. Litigation is expensive business, after all, and most big firms charge by the hour, not on a contingency fee basis.

Our lawsuit was also an opportunity to litigate a case that could have sprung off the pages of a first-year law student's torts final, or maybe from an episode of the People's Court. A "tort" is a wrongful act that gives rise to civil liability. Think medical malpractice, defective products, assault, sexual harassment, defamation, fraud, trespass. Or just simple negligence: a careless act--by someone obligated to be careful--causing injury to another party. 

Res ipsa loquitur

In the very first weeks of law school, students learn the tort principle of res ipsa loquitur.  Meaning the thing speaks for itself. This is a legal doctrine holding "without negligence, the accident would not have happened."  The idea is that if an accident happened, and somebody else had exclusive control of whatever caused the accident, that person is presumed to be liable for negligence, even with no direct evidence of a careless act. I learned this, as many do, through an 1863 case from the English Court of Exchequer, Byrne v. Boadle. In Byrne, a warehouse owner was presumed negligent when a barrel of flour rolled out of an upstairs window of the warehouse and struck a passer-by, even though there was no evidence of what caused the barrel to come loose. When res ipsa loquitur applies, the burden of proof shifts to the defendant to prove he isn't liable, that something outside his control caused the accident.  

I don't think our case was precisely res ipsa loquitur, because we had direct evidence somebody on the architect side moved the sinks and caused an unnecessary injury. I raise it anyway because it's a close analogy and because of the logic it represents: when the kitchen designer handed the drawings to the architect they were accurate, but when the architect in turn handed them to the general contractor, they weren't, causing a major structural error during construction. We the client had never touched the drawings and were relying justifiably on the expertise of those that did.  Somebody has to be responsible (right?), and everything suggests responsibility lies with the architect/MEP. Regardless of the legal theory, I felt pretty good about Shiba Ramen's negligence case. 

Ralph Nader's Tort Museum. Apparently a real thing. Byrne v. Boadle installation, left.  Holy Shit, That's a Crazy Picture.  The fellow who taught me that case is Lawrence Lessig (next to Ben Carson, bow tie), fairly odd guy and briefly single-issue Presidential candidate this year. 

Now Pending in Alameda County Superior Court

Filing a lawsuit is a pretty easy thing to do, when it comes down to it. I learned this lesson right after law school, when I clerked for a federal judge and spent a year analyzing cases and drafting the judge's orders. Some crazy fringe shit comes in the door of any courthouse every single day. I still recall seeing crank cases brought by foreclosed homeowners invoking things like "vapor money theory" and "unlawful money theory," which is some nonsense notion that if the funds borrowed to purchase property weren't tendered by the bank in silver or gold, there is no debt that must be repaid. In my litigation practice today, I see all kinds of bogus cases filed by people who have a very attenuated hold on reality.  A favorite of mine was the self-represented plaintiff who called me last summer about her case, and declared, "Yes, I have no teeth on top. That's my prerogative."  She'd personally filed dozens of lawsuits. If these people can manage to start and maintain a lawsuit, so too can you!

When it's time to file a lawsuit, you've got to ask yourself a few questions: Who do I sue? What claims do I make against them? What relief do I seek (i.e., what do I want the court to make them do for me)? Where do I sue?

Who to Sue? I decided to sue both the architect and the MEP. Through the course of my investigation, I'd concluded the MEP was most probably at fault, because it seems to be the party that prepares the plumbing drawings. But the architect was not off the hook. His name was stamped on the offending drawing, right next to the MEP's. He'd recommended the MEP and played a coordinating role between the MEP and the kitchen designer. And he'd tried to deflect blame for the incident away from the MEP and onto us, the client. If the MEP was clearly to blame, the lawsuit would operate as a wedge between the architect and the MEP, increasing the pressure on the MEP to settle.   

What's the Claim?  The claim here was one for negligence. "Negligence" here is a technical legal term. To succeed on a claim for negligence, the plaintiff needs to prove the defendant owed him a duty of care, breached that duty, and caused the plaintiff's injury. In a case like this, the idea is that an architect owes its client a duty to act within reasonable standards of professional conduct to prevent foreseeable accidents when it makes its drawings. When the architect (or MEP) made changes to the kitchen expert's plumbing drawings without informing anyone, it was absolutely foreseeable that the changes might cause the plumbing to be installed incorrectly. An architect acting reasonably either wouldn't have made the change in the first place, or it would have inquired about whether the change was acceptable.  So making the unannounced changed constitutes a breach of the duty of care, and it was the direct cause of our injury.

What's the Relief?  In a standard action for negligence--as opposed to an intentional tort--your damages are typically limited to amount of your injury. You can't get punitive damages or damages otherwise in excess of your injury.  Here, we sought compensation for the cost of redoing the floor plumbing, plus our court costs.

Where to Sue? For a small case like this one, state court is the likely forum, probably in the county where the injury occurred. Federal court is reserved for actions making federal law claims, or relatively high-value suits between citizens of different states. A plain old negligence suit against a defendant from the same state is a state court matter. Here, because the dollar amount was less than $10,000.00, I was able to bring the case in the Alameda County Superior Court's small claims division. This has advantages over a standard Superior Court civil action. It's easy to file--you fill out a small handful of forms, and your complaint is limited to the space of about 3/4 of a page. You get a resolution quickly, and neither side may be represented by an attorney at the trial. 

So with three copies of my complaint and supporting papers in hand, I stopped by the clerk's office in the downtown Oakland branch of the Superior Court. The worst part was waiting in line for nearly an hour so that somebody could take my papers and my $50. Although in federal court (where I greatly prefer to practice) you can start your case online, state court is generally well behind in the times. After the filing, I provided the file-stamped copies to a process server, who performed the task of personally delivering the summons and complaint to each of the architect and MEP. Proper service of process is absolutely essential to commencing any lawsuit, and it's worth paying the nominal amount to have a professional service do it the right way. Once I had confirmation the defendants had been served, I emailed them copies of the papers.

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Small Claims Complaint. In small claims court, this is all the space you get to describe your case. In a normal case, complaints can easily be hundreds of paragraphs long.  

Settlement

A few days later, I got an email from the architect, asking to settle the case. The two-defendant wedge strategy worked. The MEP had given the architect authority to conduct negotiations, even though the MEP would be funding the settlement. This is what should have happened early on: the architect should have owned up that his recommended MEP caused the problem, and should have leaned on the MEP to settle before they both got sued. Our settlement negotiation was brief: I wasn't interested in trying to squeeze out every potential penny, just in getting a fair resolution. I ended up accepting a refund of my $1900 deposit to the MEP, plus waiver of any additional charges (of which at least $1000 remained uninvoiced at that point). The architect kicked in $250 for my court and process server fees. I whipped up a settlement agreement and release, which they signed.  After each sent me its respective check, I dismissed the lawsuit. 

Lessons Learned

The main lesson here is an obvious one: if people think they can avoid responsibility, they will. In a case like this, where Shiba Ramen was a small-value, one-time client, the defendants felt they had no incentive to even admit a mistake was made. And I'm sure they didn't think a small restaurant was actually going to file a lawsuit against them for a few thousand dollars. No doubt, standard operating procedure in this industry is to stonewall, deny responsibility, point fingers, and make the other guy work as hard as possible to force a resolution; at least unless doing so would compromise a valuable business relationship.

It's not particularly pleasant to file a lawsuit, but it's also not particularly hard. It may be worth doing it, depending on the money and/or principles at stake and, of course, the strength of your case.  At the very least, filing a lawsuit this time around sends a message to future counterparties that you should be taken seriously if a conflict arises. 

For something bigger than a small claims suit, you probably should hire a lawyer. Companies cannot represent themselves in court outside of small claims (although individuals can self-represent), and when you're dealing with a bigger suit, it quickly becomes a lot more complex to navigate--especially if the other side is represented.   

The Ramen Lawsuit

The world is full of potential defendants. You don't need me to tell you this. In America, litigation capital of the universe, home of Nancy Grace, Judge Judy, and Ally McBeal, you are born knowing it. Naturally, the path to riches lies in a cup of McDonald's coffee spilled in your lap.

Potential defendants are especially concentrated on construction projects. You have to hire a lot of different people, who'll charge you a lot of money to do often amorphous things that are well outside your zone of expertise. When you combine large amounts of money,  asymmetries in information, lots of moving parts, and abundant opportunities for human error, the stage is set for conflict.

Shiba Ramen just concluded a lawsuit against its architect and another building consultant. It wasn't something we wanted to do, and it was a distraction we could have done without. But they made a pretty clear mistake in their drawings, forcing us to rip out plumbing fixtures from the concrete subfloor and replace them, and they completely refused to take any responsibility for the damage. We've learned that when you start a small business and have to hire service providers, it won't take long for somebody to try to get away with something at your expense. When the inevitable does happen, you need to be tuned in enough to figure out what went wrong, and you need to be able to do something affirmative to protect your interests. 

Ramen Chemistry offers a case study on Shiba Ramen Corp. v. Sacramento Engineering Consultants, et al. This time, I'll set up the conflict, and next time walk through the lawsuit itself. 

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Ally McBeal. A completely accurate representation of lawyering in the big city. 

Appetizer: Breach of Contract

Our architectural project was a pretty minor one. The space was small, and a lot of the details were filled in by parties other than the architect. But rest assured, reader, opportunities for conflict are present in abundance, no matter the size of your project! Just spend some time scrutinizing the bills, and who knows what you'll find! Now, just so you have the context right, I work in a service business myself and I'm required to make a written record of what I do for a client, in quanta of six minutes. It's incredibly onerous and lawyers hate doing it, but long gone are the days where a lawyer can send out a bill for "services rendered" and expect the client to pay it.

When we got "services rendered" type bills from our architect, I was naturally suspicious. I was on alert from the architect's very first bill, when it tried to charge us for mileage driven to a planning meeting, where it was present on behalf of the landlord (i.e., in an adverse position to Shiba Ramen) and before I'd even interviewed it for our project! So when we got a $1000+ bill for 7.0 hours of "Construction Administration," weeks before our construction even started, I asked the architect for an explanation. The response was vague--correspondence with contractors, bid assistance, and review of the kitchen designer's changes--and left us wondering how in the world the described tasks could have taken a whole business day. I pressed for more detail, asking who the architect had talked to, why those conversations took so long, and why we'd never been asked for approval or otherwise looped into the conversations.

When the architect finally responded with a detailed breakdown, everything was clear. The majority of what had been called "Construction Administration" was, per the terms of our contract, properly categorized as "Construction Drawings" (aka CDs). What's the difference?  Our contract set a fixed fee for the drawings, with Construction Administration--a very discretionary construction management component of the job--billed on an hourly basis. The architect had hit the fee cap for the drawings, so it started putting drawing-related tasks in the administration bucket and charging us accordingly. On top of this, the contract required the architect to get our approval for any fees over certain estimated amounts. The bills were now nearly $2000 over the estimate, yet we'd never been asked for approval.

Fairly displeasing, don't you think? Especially because we were starting to get hit with huge construction bills from the general contractor! Not only was the architect breaching our contract, but it was making it as hard as possible for us to figure out what it had been up to. To be fair, we would have approved some of the overcharges, had the architect bothered to ask for approval, but certainly not all of them. We demanded a 50% write-down on the unapproved amounts. The architect agreed, we chalked it up to a miscommunication, and we left things amicably enough. Peace, however, was not to last.

Floor Sink: Looks like a little thing, but the plumbing is set into the concrete subfloor.  

Main Course: Negligence

Not long after resolving the architect's inflated, extracontractual bills, a bigger problem presented itself, this time with the construction itself. The kitchen design people had come by the construction site one day to prepare for installation of our equipment, and realized three "floor sinks" had been installed in the wrong location. These sinks are designed to handle drainage from certain pieces of equipment--i.e., the pasta cooker and the dishwasher--and they have to be located in very specific places relative to the equipment they service. The location is dictated by either the Health Code or the equipment's operational requirements. The kitchen people told us we had to move the sinks before construction could continue. The concrete floor had to be opened up with a jackhammer and the plumbing redone. Cost = $3500, plus associated delay. 

How did this happen? Our kitchen designer had specified the floor sink locations correctly in its original plans, which it had provided to the architect and mechanical, electrical, plumbing ("MEP") consultant. The architect and the MEP took the kitchen plans and created CDs. The CDs went to the building and health departments for approval, and then were used by the building contractors to construct our space. For some inexplicable reason, the architect/MEP moved three of the floor sinks relative to the kitchen designer's specifications, and never told anyone. This unannounced change made its way through permitting undetected and soon was set in concrete--literally.

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Exhibit A: The offending changes are buried in a small drawing in the upper right corner of the 21st and last page of the construction drawings.

The Mistake Nobody Made that Unnecessarily Cost Me $3500

So when something like this happens, who pays for it? We soon learned that when you're a small job, from whom repeat business is not expected, you are expected to foot the bill. I went to our architect, told him the sinks were in the wrong locations relative to the accurate information he'd received from the kitchen design people, we'd had to sign off on this remedial work, and I asked him to find a way to see that Shiba Ramen didn't end up with this cost.

He basically told me to pound sand. No, this wasn't his responsibility. Never mind that a completely unnecessary (and uncommunicated) change had been made to the kitchen plans on his watch.  His name on every page of the permitted drawings. This guy had a million reasons why he wasn't on the hook for this. The kitchen designer had made a mistake, the sinks weren't "dimensioned," we'd already approved the repair work on our own, that he'd given us a good deal on the job (i.e., written down dubious charges his last bill?).  My absolute favorite was when he tried to blame us!  He said we "were given ample opportunity to review the drawings" and "any party may have discovered there was a discrepancy."  My goodness, that is rich. See, e.g., Exhibits A-C.

After a few increasingly testy emails between me and the architect, I made sure to rope in everyone involved. I was being a real pain in the ass about the whole thing. The kitchen designer and the MEP are now sucked into the swirl of of emails, all pointing fingers at each other. We'd hired three technical experts to collaborate on the pieces of these drawings, and in the end our concrete floor has to be jackhammered open to fix somebody's unexplained editorializing of somebody else's specifications. Nobody wants to take any ownership over this, but obviously someone is responsible, right? I'm the customer, they're the experts and they made the drawings. At one point the sinks were in the right place, then in wrong place. That's sort of it, isn't it? 

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Exhibit B, Left: Kitchen designer's original plans. Sink at lower left located away from dishwasher 33. Sink in middle located under table 6, away from pasta cooker 22. Exhibit C, Right: Construction drawing version. Sink at lower left now located under dishwasher 33. Sink in middle located under pasta cooker 22.  The sinks were away from the equipment in the original drawings, but were under the equipment in the construction drawings. That was the problem.

Truly, People, Clarification is Only a Phone Call Away

The conversation eventually turned toward the MEP, who appears to have made the offending changes. Although he was on notice of the problem before we remediated it, he didn't acknowledge the issue until the sinks had already been moved. At this point, he tried to argue that the sinks didn't need to be moved, and that changes shouldn't have been made "in the field" without his input. No, this was not his responsibility! No, indeed. 

But this screw-up had threatened to completely halt our construction, and we were losing money every day we weren't open. We couldn't wait around for this guy to finally show up and then spend days debating the metaphysics of sink relocation. In any case, kitchen equipment and health department permitting were the kitchen designer's areas of expertise, not the MEP's. If the kitchen designer insisted it was necessary, I was going to green light the fix. 

As we headed toward impasse, the MEP tossed me this gem, ostensibly with a straight face: "Any required clarifications are a phone call away." Going even further, he told me I should have paid him $1000 to attend a "preconstruction meeting."  His attendance, he was quite assured, "would have avoided the installation problems."  Surely he didn't mean to imply we should have paid him a relatively exorbitant sum for the opportunity to catch one of his own mistakes? 

That, I told him, was nonsense. Still, after all these dozens of emails, nobody has even told me why the sinks were moved in the first place. I made a settlement demand and told them, guys, the next time you hear from me is when I serve each of you with a summons.

Getting no response, I waited four months and, in my subsequent email, served each of them with a summons. 

Next time, it's to the courthouse we go!

Tipping the Headsman: Government Agencies and the Startup Business

What makes this restaurant project most satisfying is that we've had the opportunity--yes, the opportunity!--to obtain permission for our activities from at least ten government agencies.  And what an opportunity it is.  Legions of paperwork, often on actual paper, trips to faceless government offices all over town, and the obligation to lay your neck on the metaphorical chopping block so that some bureaucratic stickler can take a swing.  

Best of all, you get to pay for the axe!  Indeed, the experience calls to mind the execution of the Duke of Monmouth for high treason against the English Crown.  Having mounted the scaffold on Tower Hill, Monmouth, "as was usual, gave the headsman some money, and then he begged him to have a care not to treat him so awkwardly as he [had recently done to one unfortunate] Lord Russell."  No such luck for poor Monmouth.  Eyewitness reports assure us that it took no fewer than five strokes with a blunt axe to have off with his head.

The actual situation is more like death by a thousand cuts: fees upon fees, filings upon filings, building inspectors.  Mostly the process is a drag. It's expensive because it's inefficient. Unsurprisingly, it can also be invasive.  The worst culprits won't surprise you: the California Department of Alcoholic Beverage Control, aka "ABC," and the local building and health departments.  I've already written at length about the spectacularly overregulated process of getting a license from ABC to sell beer at a California restaurant, which I hope gives aspiring restauranteurs a good sense of what the government has in store for them if they want their business to serve alcohol.

This time, let's do a quick rundown of the basic government interactions you will have when starting your business.  Aside from ABC, and to some extent the Health Department, none of this is specific to restaurant businesses.  Depending on the nature of your business, who knows which agencies--state, federal, local--you'll have to deal with.  So please view this as a general starting point for your startup to-do list, with a slight emphasis on restaurant businesses.  

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Duke of Monmouth.  Head on (L), head (nearly) off (R).  I assume this won't be your fate if you forget to file your fictitious business statement, but you probably don't want to test my assumption.

Step 1: Consider Limited Liability and Corporate Structure

So you want to start a business? That's good! And probably also a bit scary, especially if you haven't done it before. The first thing you've got to think about is what kind of business you want to be.  And I don't mean what kind of products or services you're planning to sell.  I mean what kind of legal structure your business will have. There are a lot of considerations, but the most fundamental is insulating your individual assets from the liabilities of the company. This is the principle of limited liability; i.e., that your risk is limited to what you invest in your company, and does not extend to your house, car, or personal bank accounts.

This is a big topic for another day, but just be aware (1) of the need to legally separate yourself from your business, and (2) that whichever corporate structure you choose--partnership, LLC, S-Corporation, C-Corporation, etc.--will come with its own set of rules governing everything from how you pay taxes, to how you raise money, to what kinds of corporate governance rules you need to follow after you start operating. An LLC is often a good choice for a small business, but every situation is different, and it's probably worth hiring an experienced business lawyer to give you guidance (to be clear, I am not providing legal advice here on Ramen Chemistry).  If you want legal advice about your business issues (or know someone who does!) contact me at work at Davis Wright Tremaine LLP.  

Corporate Status.  We are incorporated in California. Every state's SOS keeps a register like this of every one of its corporations.

Step 2: Endless Government Interaction Awaits.  Here's Where You'll Start.

Once you've figured out what kind of entity you're going to be, your first task is to incorporate your company with your state's [1] Secretary of State (here's a link to the CA SOS).  This is a simple task involving completion of a document called the Articles of Incorporation (or whatever the appropriate initiating document is for the corporate form you've chosen), paying a filing fee, and--voila--your corporation is born. A person in the eyes of the law!  I was so amped up to start Shiba Ramen two years ago that I got up one morning to pay a personal visit to the SOS office in Sacramento to file our Articles. Completely unnecessary, and naturally anticlimactic, but I'm glad I went anyway.

If you're planning to sell taxable goods (ramen, burritos, consumer electronics, whatever), you'll need to get a Seller's Permit.  In California, you get this from the [2] state Board of Equalization. This permit allows you to purchase goods for your business without paying sales tax, so long as those goods are intended for resale. The idea is that a sales or use tax is paid only by the end purchaser. For example, we don't pay sales tax on drinks when we buy them from a wholesaler, but we charge tax when we sell them to customers. As a seller of goods, your responsibility is to collect that tax from your customers and remit it to the state.

You'll probably need to file a Fictitious Name Statement in any counties where you do business. Here in Alameda County, this is done at the [3] Clerk-Recorder's Office in Downtown Oakland. So what's a fictitious business name? This is the name under which you actually do business (i.e., your "DBA name"). If your DBA name is different from the official name of your corporation, you need to register it with the county. So, for example, Shiba Ramen Corporation is our official name, but Shiba Ramen is our DBA name. We filed a Fictitious Business Statement on Shiba Ramen. After you file the registration, though, you're not done. You then need to publish a notice in a legal newspaper for several weeks in a row before you are permitted to use your DBA name.

Assuming you issue shares in your company (as we do for our S-Corp), you'll file a Notice of Issuance of Shares with the [4] California Department of Business Oversight. You'll need to get a business license from the [5] city where you do business.  In Emeryville where we do business, this is given in exchange for a yearly tax payment of 0.1% of annual gross revenue.  

Once you start operating, you'll be in regular contact with the [6] Franchise Tax Board, to whom you'll remit sales taxes, and the [7] Employment Development Department (aka "EDD"), to whom you'll report data on your employees and remit employment taxes. Food businesses will deal with [8] the county Health Department and possibly [9] ABC.  Any business that builds anything must go through [10] the city Building Department.  

You didn't think there'd be any one-stop shopping in the world of government permits and taxes, did you? The good news is that the basic startup cycle is long enough that you have plenty of time to figure out the steps and get them done.  Most of these things you can do on your own as long as you do some research in advance. There are a lot of great corporate startup guides and web resources to guide you through the steps.  I relied pretty heavily on a couple of CA-specific guides from Nolo, which were extremely helpful for a project like Shiba Ramen. These are written in everyday language, are comprehensive, cover a huge scope of topics in many states, and are instantly downloadable. You can always call an attorney if something feels too far out of your comfort zone.