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Robert Bernstein - Senior Counsel

Robert Bernstein is Senior Counsel at Tyson & Mendes’ San Diego office.  Mr. Bernstein is in his 32th year of practicing law in California.  During his career, he has defended clients in construction defect, real estate, premises liability, and personal injury/auto accident cases. Mr. Bernstein’s construction litigation clients include national developers and general contractors, manufacturers and material suppliers, design professionals including architects and engineers, and trade contractors of many specialties.

Mr. Bernstein has extensive experience in representing clients in state and appellate courts throughout California. He has also appeared before governmental agencies including county supervisors, city councils, school districts and other county and local governmental organizations.   Mr. Bernstein has successfully prosecuted and opposed many summary judgment and adjudication motions, discovery motions, and pre-trial motions, leading to outright dismissals or advantageous settlements on behalf of his clients.  He has resolved hundreds of claims through motion, settlement, or decision.

Mr. Bernstein has spoken before insurance and industry groups on a variety of legal topics and has written extensively on developments in the law, including profiles of new laws and recent case decisions.  He served for several years as editor and frequent contributor to the Update publication for the San Diego Defense Lawyers organization.

Mr. Bernstein obtained his J.D. from the University of San Diego in 1988, where he was a member of the Phi Alpha Delta legal fraternity.   He attended the University of California, Santa Barbara and the University of California, Los Angeles, where he obtained a B.A. in History in 1985.  He is admitted to practice before all courts of the State of California and several U.S. District Courts and is a member of the San Diego Defense Lawyers.

In his personal time, Mr. Bernstein enjoys golf, working out, playing guitar, and spending time with his wife, children, and dogs.

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Recent Posts

The Effect of COVID-19 on The Music Industry and Recent Case Law

While the streaming of recorded music remains healthy, live music venues, musicians, and those who support them have been hard hit by the COVID-19 pandemic. Restaurants may survive by offering food to go and in some instances outdoor seating, but a concert cannot be packaged to take home, and it is not practical to perform outdoors for small groups, even when weather and noise are not concerns. Following are summaries of two recent music industry decisions, one a win for an insurer and one a win for a concertgoer. A third ongoing case involving a dispute with an insurer over a cancelled music tour is also discussed.

Score One for the Subcontractors: You Can Challenge a “No Damages for Delay” Clause! Maybe Others?

It is a given in the construction industry: owners and general contractors have superior bargaining positions when compared to subcontractors.  This is justified by the fact owners generally fund projects and assume the risk a project may be, in one or more facets, unsuccessful.  Likewise, general contractors typically assume a significant share of responsibility for the timely and efficient completion of a project.  Of course, owners and general contractors stand to reap…

California Contractor Licensing Law Update: Disgorgement Claims Against Unlicensed Contractor Expire in One Year

The California Legislature really wants construction contractors in California to be licensed. As we have written previously, public policy supporting California’s contractor licensing requirement is so strong that even if you know a contractor is unlicensed when you sign a contract with them, you are still entitled to not only to refuse to pay them, you may benefit from any and all work they have performed. It gets even worse for the contractor. You may also sue them to obtain a refund (“disgorgement”) of any…

Travelers Sent Packing in Claim for Reimbursement of Defense Fees and Costs Against Co-insurer

If Covid-19 has left you desperate for anything new to read, this hot-off-the-press decision may interest you – even though it involves insurance law! In a recent case, Travelers sought reimbursement from Hanover for funds incurred in defending an engineering firm which was insured by both companies. Hanover’s motion to dismiss was granted, with the Court determining : 1) Travelers’ claim was not among the kinds of claims which can be pursued against a party’s insurer under California…

California Supreme Court Favors Policy Holders in Excess Insurance “Vertical Exhaustion” Decision

Although insurance coverage law is generally considered a subject sufficiently dry to rival a James Bond martini, a recent decision by the California Supreme Court is sufficiently important to leave excess insurers shaken and their insureds stirred. In Montrose Chemical Corp. of Cal. v. Superior Court (No. S244737, filed 4/6/20) (Montrose III), the Court held that as between excess insurers at differing levels of coverage, a rule of “vertical exhaustion” or “elective stacking” applies…

Crosno v. Travelers – Payment Bond Claim Voids Surety’s “Pay-When-Paid” Defense

The purpose behind a public works payment bond is to provide subcontractors with “a quick, reliable and sufficient means of payment.”  (Cooley v. Freeman (1928) 204 Cal. 59, 62.)

New California Civil Code Section 5986 “Saws Off” Branches Decision Which Allowed Dismissal Of HOA Defect Lawsuits Not Approved By Homeowner Vote

A 2018 decision from California’s Fourth District Court of Appeal held that the homeowner’s association (“HOA”) for the Branches residential development could not proceed with a construction defect lawsuit against the project’s developer.  They reasoned the HOA failed to comply with a Covenants, Conditions and Restrictions (CC&R) requirement compelling it to obtain approval of a majority of members before pursuing litigation or arbitration.

California’s AB5 – A Bump in the Road or a Brick Wall For the Gig-Economy?

On January 1, 2020, AB5 will be the law of the land in California. The law is codified as California Labor Code, Section 2750.3. The new law provides significant protections to workers by classifying many who were previously deemed independent contractors as employees, and by placing the burden to prove that a worker is not an employee on the employer.  The law has the potential to create major changes in the labor market…

License Requirements for California Contractors and a Novel Trial Strategy that Failed

Most California construction contractors know that they must be licensed in order to do business in the state.  This requirement is contained in a provisions of the California Business & Professions Code.  California Business & Professions Code, Section 7031 provides, in part…

American Safety Takes a Hard Fall After Ignoring Million-dollar Claim Against Insured Based on Soil Subsidence

Liability insurer American Safety Insurance Company (“ASIC”) learned a tough and expensive lesson arising out of a dispute with Insurance Company of the State of Pennsylvania (“ICSOP”), in an appellate decision issued by the Second Appellate District, Division Eight, on March 1, 2019.

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