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Contract-defying Policy of Equitable Grace Period Requires Permanent Improvement to Property

Author: Po Waghalter

Guest Editor: Jenn N. Crittondon

November 9, 2020 7:59pm

Normally, contracts are strictly construed, and courts are generally reluctant to veer away from the written terms. However, as with every rule, there is an exception, and with regard to long term lease agreements, there is the quiet but powerful Equitable Grace Period: quiet in that potential beneficiaries are not often aware of its existence, and powerful in that it defies the general policy of strict adherence to contract terms.

Carter v. Pulte Home Corporation – A Look at Subrogation in California

Author: David Ramirez

Guest Editor: Sean McGah

November 9, 2020 7:54pm

In the recent case of Carter v. Pulte Home Corporation (2020) 52 Cal.App. 5th 571, the 1st District Court of Appeal denied an insurance carrier’s equitable subrogation claim, explaining an insurer’s obligations under its insurance policy are not the same as an indemnitee’s obligations under an indemnity provision.  In other words, as aptly put by the Court of Appeal, while a “subrogated insurer is said to ‘stand in the shoes’ of its insured, because it has no greater rights as the insured. . . [h]ere . . . [the insurer] was seeking to stand…

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

Author: Robert Bernstein

Guest Editor: Sean McGah

November 9, 2020 7:48pm

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…

Arizona Court of Appeals: A $270 Fee Charged to Recreational Users Was Deemed “Nominal” And Does Not Bar Recreational Immunity.

Author: Adam Carpinelli

Guest Editor: Alla Policastro

August 12, 2020 11:00am

In the case, Allen v. Town of Prescott Valley, two outfield lights were not functioning, when an outfield softball player was injured by a fly ball. Allen v. Town of Prescott Valley, 244 Ariz. 288, 289, 418 P.3d 1061, 1062 (Ct. App. 2018). The player sued the Town of Prescott Valley (Town) for negligence. The trial court granted Town’s motion for summary judgment based on recreational immunity even though the teams were charged a $270 fee per season.

Use It or Lose It: Owners of Condemned Property Have an Option to Repurchase When Government Fails to Timely Develop or Reauthorize Public Use

Author: David Kahn

Guest Editor: Alla Policastro

August 12, 2020 11:00am

What happens when a city condemns private property for a stated public use but fails to follow through on the development of the public use?  Such was the issue recently decided by the Second District Court of Appeal in Rutgard v. City of Los Angeles published on July 30, 2020. (WL 4361069). The Court held a public entity desiring to retain condemned property must either develop the public use or reauthorize its initial resolution within ten years of the date the original authorizing…

California – Insurance: Genuine Dispute Doctrine

Author: David Ramirez

Guest Editor: Alla Policastro

August 12, 2020 11:00am

In the recent case entitled Fadeeff v. State Farm General Ins. Co. (2020) 50 Cal.App.5th 94, the California Court of Appeals, First District  held that triable issues of fact as well as the trial court’s failure to address a request for a continuance precluded summary judgment for an insurer under the “genuine dispute doctrine.”

Property Owner Did Not Owe a Duty to A Scrap Metal Worker Following Chlorine Gas Exposure

Author: Bryan D. Scholnick

May 11, 2020 9:00am

Division Three of the Washington Court of Appeals recently weighed the duty owed by a property owner to a scrap metal worker.  Schuck v. Beck et al, 36754-1-III (April 21, 2020).  The scrap metal worker alleged that the property owner owed a duty under common law negligence theories and strict liability for engaging in abnormally dangerous activities.  The Appellate Court found that the property owner did not owe a duty to the worker.

Real Estate Agent’s Exposure for Incomplete Property Disclosure

Author: Bradley Damm

Guest Editor: Dan Cortright

May 11, 2020 9:00am

Real estate professionals commonly assume the residential property disclosure is the sole responsibility of seller and not the seller’s real estate broker.  This misconception has resulted in allegations and claims against real estate brokers for negligence, breach of contract, misrepresentation, violation of the Colorado Consumer Protection Act, fraud based claims, and even civil theft.  The focus of this article is simply on the violation of the…

COVID-19 Interrupts Your Business: Will Your Business Interruption Coverage Apply?

Author: Louis R. Barella

Guest Editor: Dan Cortright

May 11, 2020 9:00am

As businesses in California remain closed due to the coronavirus pandemic, their owners have looked to recoup their losses by turning to their insurance policies.  The American Property Casualty Insurance Association estimated nationwide virus-related losses to businesses with 100 or fewer employees would amount to between $220 billion and $383 billion a month. (S.F. Chronicle, April 28, 2020). About one-third of U.S. Businesses have…

Landowner 101: Liability for Injuries on Property

Author: Shelley Kramer

Guest Editor: Dan Cortright

May 11, 2020 9:00am

Land ownership is a phenomenal way to build wealth.  As noted by David Greene in Forbes Magazine, November 27, 2018, land ownership can provide cash flow, appreciation, tax advantages, leverage and a hedge against inflation.   Historically, owners of land enjoyed considerable latitude in maintaining their property, hazards and all, with liability tending to be the exception rather than the rule.  See, e.g. Palmquist v. Mercer (1954) 43 Cal.2d 92…

Inverse Condemnation – City of Oroville v. Superior Court

Author: David Ramirez

Guest Editor: Robert Bernstein

February 11, 2020 3:25pm

In the recent case of City of Oroville v. Superior Court, 7 Cal. 5th 1091(2019), the California Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup.  The Court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial…

Defending Phony Alter Ego Allegations in Real Estate Litigation

Author: David Kahn

Guest Editor: Robert Bernstein

February 11, 2020 3:22pm

Frequently in real estate/premises liability litigation the plaintiff will allege the corporate entity holding title to the property in question is acting as the “alter ego” of an individual corporate representative, in an effort to hold the representative personally jointly and severally liable for any judgment against the corporation. This is commonly referred to as “piercing the corporate veil.” Typically, the allegations will be completely “manufactured” and…

A First Look at the Statutory Limitations Period to Assert a Construction Defect Claim Under the Right to Repair Act

Author: Dane Joseph

Guest Editor: Robert Bernstein

February 11, 2020 3:16pm

In the recent case entitled Hensel Phelps Construction Co. v. Superior Court (2020 WL 370445; January 22, 2020), the Fourth District Court of Appeal, Division One, interpreted the meaning of “substantial completion” under Civil Code section 941 of the Right to Repair Act (Civ. Code §§ 895, et seq.). No other California court has interpreted the meaning of “substantial completion” or provided meaningful analysis of the statutory limitations period applicable…

Supreme Court’s Guidance to Developers in the Vallagio Case

Author: Bradley Damm

Guest Editor: Robert Bernstein

February 11, 2020 3:14pm

In 2017, the Colorado Supreme Court handed developers a victory in the ongoing saga of construction defect law in Colorado. In Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., 395 P.3d 788 (Colo. 2017), the Colorado Supreme Court held that the Colorado Common Interest Ownership Act (“CCIOA”) does not prohibit developers from retaining a right of consent to certain amendments to the HOA’s…

California Court of Appeal Extends Trail Immunity Defense in Loeb v. County of San Diego

Author: April M. Cristal

Guest Editor: Robert Bernstein

February 11, 2020 3:11pm

Is a landowner entitled to a “trail immunity” defense under California Government Code,  Section 831.4 if a pathway is not exclusively used for recreational purposes? In Loeb v. County of San Diego, 255 Cal.Rptr.3d 860, the California Court of Appeal, Fourth District, answered the question in the positive. Unsurprisingly, the Court held that a landowner is entitled to immunity when a trail is used for recreational purposes, even if that trail…

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.

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