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Washington State Supreme Court Outlines All Available Causes of Action Against a General Contractor for Injuries Arising on a Job Site

Author: Bryan D. Scholnick

Guest Editor: Dan Cortright

December 2, 2019 10:00am

On November 21, 2019, the Washington State Supreme Court, in a unanimous decision, reaffirmed that general contractors on construction job sites have a statutory and a common law duty to maintain a safe work site.  Vargas v. Inland Washington, LLC, 96527-7, 11/21/19.  Additionally, the Court stated that a general contractor may also face vicarious liability for the failures of others on the job site to provide a safe workplace under…

CA Supreme Court Decides: What is a Construction “Project”? (and Why it Matters)

Author: Alice Segal

Guest Editor: Robert Bernstein

November 13, 2019 10:00am

The lawsuit, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, arises from an ordinance passed by the City of San Diego in 2014, which authorized the establishment of medical marijuana dispensaries in only certain zones and with a cap on the total number of dispensaries in each zone.  In response, the Union of Medical Marijuana Patients (“UMMP”) challenged the ordinance on the grounds the…

DOH! An Eminent Domain Decision Homer Simpson Would Love

Author: David Ramirez

Guest Editor: Robert Bernstein

November 13, 2019 10:00am

In the recent case entitled, Los Angeles County Metropolitan Transportation Authority v. Yum Yum Donut Shops, Inc., (2019) 32 Cal. App.5th 662, the California Court of Appeal, Second District, in a decision which would have pleased even the donut master himself, Homer Simpson, clarified that a property owner facing eminent domain is only required to prove partial loss of goodwill, not total loss of goodwill, in order…

Construction Defect Debate: Does a Latent Defect Ever Become Patent?

Author: Brian Woolfall

Guest Editor: Jeremy Freedman

November 13, 2019 10:00am

Evaluating whether the statute of limitations bars a particular defect claim in construction defect litigation is critical to defending it.  Patent defects (those which are “apparent by reasonable inspection” per Code of Civil Procedure 337.1(e)) have a statute of limitations which expires four years after the substantial completion of the improvement.  In contrast, latent defects are those which are “not apparent by reasonable inspection” per Code of…

Late Expert Designation- Fatal or Flawed?

Author: David Ramirez

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

In the recent case entitled Du-All Safety, LLC v. Superior Court of Alameda County, (2019) 34 Cal.App.5th 485, the Second District Court of Appeal addressed under what circumstances a party may “supplement” its experts by identifying additional experts to testify on subject matters in which the party had not previously designated an expert.

Western Heritage Ins. Co. v. Frances Todd, Inc.

Author: David Ramirez

Guest Editor: Alla Policastro

August 12, 2019 10:00am

Recently, in the case of Western Heritage Ins. Co. v. Frances Todd, Inc. (2019) Cal. App.5th 976, the Court of Appeals of California, First Appellate District, addressed whether a commercial condominium association’s insurance carrier could subrogate against the tenants (aka lessees) of one of its member unit owners.

Expert Witnesses: Ryan v. Real Estate of the Pacific, Inc.

Author: David Ramirez

Guest Editor: Alla Policastro

August 12, 2019 10:00am

Recently, the California Fourth District Court of Appeal held that homeowners suing their real estate broker for negligence did not need an expert witness to establish the elements of their causes of action. (Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal. App. 5th 637).   Generally, expert witnesses are required to establish the standard of care in professional negligence cases.

The Statute of Repose Under the Right to Repair Act – Exactly When Does it Run?

Author: Brian Woolfall

August 12, 2019 10:00am

One of the first tasks a homeowner’s or association’s attorney does when they receive a new construction defect case is to immediately obtain records relating to the completion date of the property at issue to make certain the 10-year statute of repose has not yet run.  Similarly, of course, one of the first steps defense attorneys need to take when their builder client is faced with a construction defect claim is to immediately ascertain whether they can…

Proposition 65 Warning Requirements: Compliance Considerations for Landlords, Building Owners, And Counsel

Author: Michaela Jester

May 13, 2019 3:00pm

Beginning July 1, 2019, California residential rental properties will be subject to Proposition 65 Warning requirements. The warning requirements will be incorporated into lease agreements, letters, and e-mails, thereby replacing the warning signs plastered across the state. Pursuant to the new California law, landlords and building owners will be required to warn tenants and all known adult occupants of chemicals detected at the premises…

Recent Developments in the Privette-Toland Doctrine

Author: David Kahn

May 13, 2019 3:00pm

The Privette-Toland doctrine was created from a series of California Supreme Court cases protecting landowners and other hirers of independent contractors from lawsuits by employees of the independent contractor who sustain on the job injuries. The Privette-Toland doctrine is an important defense in premises liability/construction cases because, under the right circumstances, the doctrine may provide grounds…

A Challenge to the Privette Doctrine Defense – the Retained Control Doctrine Carves out an Exception

Author: David Ramirez

Guest Editor: Catie R. Johnson

February 11, 2019 4:00pm

The Privette Doctrine arises from a 1993 California Supreme Court case entitled Privette v. Superior Court (1993)5 Cal.4th 689, which provides that a higher-tiered party such as an owner or general contractor is not liable for injuries sustained by employees of a lower-tiered party such as a subcontractor on a construction project. There are, however, a number of exceptions to the Privette Doctrine. One of these exceptions is known as the “retained…

Court Rules Insurer May Not Pursue Subrogation Rights of Suspended Corporation

Author: David Ramirez

Guest Editor: Catie R. Johnson

February 11, 2019 4:00pm

In the recent case of Travelers Property Casualty Co. v. Engel Insulation Inc. (2018 WL 6259032; November 30, 2018), The Third District Court of Appeal ruled a Complainant in Intervention could not maintain an affirmative action against subcontractors to recover attorneys’ fees and costs incurred in defending its suspended insured in an underlying action.

A Powerful Tool to Deal with a Mechanic’s Lien Foreclosure Lawsuit in California

Author: Candice N. Hamant

Guest Editor: Catie R. Johnson

February 11, 2019 4:00pm

Contractors and material suppliers are entitled to foreclose on a mechanic’s lien if they comply with the preliminary notice (“prelien”) requirements. California Civil Code sections 8200 and 8204 require notice to the owner, direct contractor and construction lender, if any, not later than 20 days after the contractor or material supplier has first furnished work on the work of improvement. If the contractor or material supplier fails to do this, they…

New California Law Requires Contractors-Insurers to Disclose Settlements

Author: Robert Bernstein

Guest Editor: Catie R. Johnson

February 11, 2019 4:00pm

As part of the long-term response to the June 2015 collapse of an apartment building balcony in Berkeley, California which killed six young people, California Governor Jerry Brown signed into a law Senate Bill 1465, which requires contractors, subcontractors and insurers to report most settlements reached in construction defect cases. This new law took effect on January 1, 2019 and should be on the radar of California general…

“Loss of Use” May Constitute “Property Damage” in California

Author: Michaela Jester

Guest Editor: Catie R. Johnson

February 11, 2019 4:00pm

In October 2018, the Court of Appeals for the Fourth District of California Court unanimously held the “loss of use” of tangible property need not be a loss of all possible uses of the property to constitute property damage; loss of a particular use can be sufficient to trigger coverage. Further, the court held the use of economic loss calculations as an appropriate measure of property damage. Thee…

The Construction Defect Is Not Always the Contractor’s Fault, Right? Why Not Look at the Building Products Too?

Author: Bryan D. Scholnick

Guest Editor: Catie R. Johnson

February 11, 2019 4:00pm

How often during construction defect litigation does it appear the contractor is certain they did the work in a workmanlike manner?  How often do we hear from the contractor or subcontractor there is no way they caused the defect to arise?  Recently, a building envelope professional was adamant his envelope design was so redundant, there is no way the envelope would allow water to intrude into the building.  After multiple…

Fully Vette Your Public Adjuster Before Letting Them Work Your Property Claims

Author: Bryan D. Scholnick

November 13, 2018 9:00am

When considering hiring a public, or independent, adjuster for work in Washington, the claims person must begin the process of vetting possible candidates and documenting their reason behind their choice.  Based on two recent Washington court rulings, one state court case and one federal district court case, the actions of the public adjuster may be imputed to the claims person under certain circumstances. The number of proponents…

Good Faith Settlement Determination: Not a Free Pass

Author: Candice N. Hamant

November 13, 2018 9:00am

Often times, after a settlement in a construction defect litigation or case involving real property, such as a fall at a public park, defendants would run out to get their good faith settlement (“GFS”) determination as a matter of course. While a GFS determination protects a litigant from equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault, it has no impact on…

A Win for Design Professionals – A Late Certificate of Merit Could Result in a Time-Barred Claim

Author: Brian Johnson

November 13, 2018 9:00am

On May 5, 2014, George Sutherland sustained injuries when, while working as a crane operator, his crane became unstable and fell over. Sutherland brought an action almost exactly two years later, on May 3, 2016. His complaint alleged a cause of action for negligence against defendant Curtis Engineering Corporation. Curtis Engineering Co. provided engineering services to Sutherland’s project and at the worksite where Sutherland’s…

Product Defects and The Risk-Benefit Test

Author: David Ramirez

November 13, 2018 9:00am

In the recent case of William Jae Kim, et al. v. Toyota Motor Corporation, et al. (2018 WL 4057248), the California Supreme Court affirmed the Second Appellate District Court of Appeal decision which previously affirmed the trial court judgment after a jury found for defendant in a product liability case. Plaintiffs claimed the pickup truck was defective because its standard configuration did not…

Rodriguez v. Department of Transportation: California Public Entities Shielded From Guesswork Games When Approving Public Property Designs

Author: Allison Lawrence

August 13, 2018 9:00am

In March, 2018, the California Court of Appeal decided an interesting issue with regarding defective designs on public property in Rodriguez v. Department of Transportation, Case No. F074027 (March 27, 2018). The Court had to decide whether a public entity could avoid liability through the affirmative defense of design immunity. In a nutshell, the Court rejected plaintiff’s assertion that a public official’s approval ­of a design does…

Tips for California HOAs When Enforcing Rights Against Delinquent Homeowners

Author: Po Waghalter

August 13, 2018 9:00am

Can an owner lose their home simply because they do not pay their homeowner’s association (“HOA”) dues?  The answer is: yes.  It is only fair, after all.  However, it is not as simple as it sounds.  There are legal and technical hoops in place, and HOAs are mandated to comply with these hoops or be subject to attorney-driven lawsuits where attorneys’ fees can exceed the cost of the technical violation(s).

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