Palos Verdes’ Failure to Warn of Dangerous Condition Not Protected by Design Immunity Statute

Author: Robert Bernstein

Guest Editor: Kiran Gupta

May 7, 2021 9:00am

A recent auto accident involving superstar golfer Tiger Woods occurred in the City of Ranchos Palos Verdes, an upscale community adjacent to the Pacific Ocean in greater Los Angeles. A 2016 accident in the same area gives rise to a recent decision of California’s Second District Court of Appeal which limits the scope of design immunity afforded to public entities.

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

Author: Robert Bernstein

February 9, 2021 9:00am

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

Author: Robert Bernstein

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…

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

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…

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.

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

Author: Louis R. Barella

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

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…

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…

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

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…

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…

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…

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

Author: Candice N. Hamant

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

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…

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

Author: Bryan D. Scholnick

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…

United Riggers & Erectors v. Coast Iron & Steel: Can Contractors Withhold Retention Payments from Subcontractors?

Author: Allison Lawrence

August 13, 2018 9:00am

When a general contractor subcontracts work in California, it is standard practice that payment is made by the general contractor to the subcontractor on a monthly basis. The contractor is allowed to withhold a certain amount of the payment due as a retention in order to ensure that the subcontractor continues to uphold their end of the bargain at the expected level of quality. The payment of these retention funds is dictated by Civil Code…

Copyright © 2001–2022 Tyson & Mendes LLP. All Rights Reserved. Website by Big Behavior.