Notice of Completion Determines Mechanics Lien Deadline
August 13, 2019 —
William L. Porter - Porter Law GroupThe California Mechanics Lien is one of the most valuable collection devices available to contractors, subcontractors and suppliers who are unpaid for work performed and materials supplied in relation to a California Private Works project. The mechanics lien allows the claimant to sell the property where the work was performed in order to obtain payment. The process starts with the recording of a mechanics lien in the office of the County Recorder where the property in question is located. As noted below, certain deadlines must be met.
Know Your Mechanics Lien Filing Deadlines Generally
Working within deadlines is absolutely crucial to preserving mechanics lien rights under California law. The deadlines differ, depending on whether you are a ”direct” contractor, also known as “original” or “prime” contractor (one who contracts directly with the property owner) or a subcontractor or material supplier. The primary differences are that, the direct contractor is only required to serve the “Preliminary Notice” on the Construction Lender (Civil Code section 8200-8216), whereas the subcontractor and material supplier must serve not only the Construction Lender, but also the Owner and Direct Contractor (see Civil Code section 8200(e)). Another difference is that a direct contractor has a longer period of time in which to record a mechanics lien after a valid “notice of completion” or a “notice of cessation” has been recorded (Civil Code sections 8180-8190), (60 days for original contractors as compared to 30 days for subcontractors and suppliers – See Civil Code sections 8412 and 8414). A further general description of the rules is as follows:
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Construction Litigation Roundup: “The Jury Is Still Out”
October 30, 2023 —
Daniel Lund III - Lexology“The Seventh Amendment guarantees the right to a trial by jury for a legal claim in a civil action.” So, isn’t the law, well, the law?
Well, perhaps.
Some axioms to remember in contracting are that parties are typically able to agree in a contract to anything that is lawful, and that all such lawful agreements essentially become the “law” between the parties. It is on these principles that courts issue jurisprudence which becomes binding on future litigants – for example, concerning waiver of any right to trial by jury.
Hence, when a second-tier subcontractor on a federal project sought a jury for a lawsuit it had against a general contractor’s sureties, the sub was successfully rebuffed by the sureties based upon a waiver to trial by jury contained in the relevant subcontract. The court noted various matters to be considered in connection with the generally enforceable jury waiver – including the conspicuousness of the waiver (and, therefore, whether the subcontractor “knowingly” agreed to the waiver), as well as the relative bargaining power of the parties to the agreement (here, the sub was self-proclaimed to be a “leader in the construction contracting field”) – and affirmed the legality of the waiver.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Renters Who Bought Cannot Sue for Construction Defects
October 08, 2013 —
CDJ STAFFA Wisconsin couple that leased then bought a home cannot sue the couple that built the home for construction defects. The court rejected the claims made by Niksa and Kelly Ivancevic that the sellers, Ronald and Debra Reagan, had breached contract or that the contract represented a mutual mistake.
The Ivancevics initially leased the home, with an agreement that said the house would be “delivered in clean condition and good repair, free of mold and toxic substances, suitable for habitation in compliance with all laws.” Before the purchase, no defects were found. After the purchase, the Ivancevics had problems with the air conditioning, leading to water leaks on the second floor.
The court found that the actual sales contract did not guarantee a defect-free residence. Therefore the Ivancevic’s claim of a mutual mistake, in which “both parties of a contact are unaware of the existence of a past or present fact material to their agreement” did not apply, since the presence of construction defects was not “material to their agreement.”
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New Evidence Code Requires Attorney to Obtain Written Acknowledgement that the Confidential Nature of Mediation has been Disclosed to the Client
January 02, 2019 —
Steven J. Pearse, Esq. & David A. Napper, Esq. – Chapman Glucksman Dean Roeb & BargerSenate Bill 954: MEDIATION CONFIDENTIALITY DISCLOSURES.
California regards mediation as a beneficial process for parties to resolve disputes in an expeditious and economical fashion. To assure open and candid participation, there is a longstanding policy in California to maintain confidentiality during the mediation process. However, the mediation confidentiality statutes have prevented some clients from suing their·attorneys for alleged malpractice that occurred during the mediation process. (see Cassel v. Superior Court, (2011) 51 Cal.4th 113). Senate Bill ("SB") 954, was recently passed and thereafter approved by the Governor on September 11, 2018 to address this concern.
SB 954, which will amend California Evidence Code section 1122 and add California Evidence Code section 1129, requires that an attorney representing a client participating in a mediation or a mediation consultation provide that client with a written disclosure and acknowledgement containing the mediation confidentiality restrictions as set forth in the California Evidence Code.
This written disclosure and acknowledgement requirement does not apply to class or representative actions. Additionally, the failure of an attorney to follow the new requirement will not be a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation. Any communication, document, or writing related to an attorney's compliance with the disclosure requirement will not be considered confidential and may be used in a disciplinary proceeding if the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.
California Evidence Code section 1129 sets forth the exact language that must be used in the disclosure. It even informs the client that all communications between the client and the attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if the client later decides to sue the attorney for malpractice because of something that happens during the mediation.
The new disclosure requirement will allow mediation to maintain the confidentiality that encourages open and candid communications during the process while ensuring that before clients agree to mediation that the clients are made aware of how that confidentiality can potentially impact them. SB 954, will take effect on January 1,2019.
Reprinted courtesy of
Stephen J. Pearce, Chapman Glucksman Dean Roeb & Barger and
David A. Napper, Chapman Glucksman Dean Roeb & Barger
Mr. Pearce may be contacted at dnapper@cgdrblaw.com
Mr. Napper may be contacted at jpaster@HuntonAK.com
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A Look at Trending Legislative Changes Impacting Workers' Comp
February 26, 2024 —
Rosanna Shamash - Construction ExecutiveThe tides are shifting in the construction industry when it comes to legal matters—and business owners could feel the brunt of it.
Recent legislative changes in the state of New York could signal how workers’ compensation cases move forward across the country and impact business owners in the space. Arguably, New York has historically laid the groundwork for workers’ compensation law in numerous other states. Now, we’re seeing a clear shift in favor of workers with some of the recent legislative changes. Owners, operators and executives in the construction space have increasingly found themselves facing costly claims that in years prior carried a smaller dollar value and were largely viewed as inconsequential.
So, what’s the best way for business owners in the construction industry to protect their businesses for the future? Start by gaining a basic understanding of changes in the legal landscape, by securing defense attorneys who know the construction space and by taking steps to protect your business before an incident happens.
Reprinted courtesy of
Rosanna Shamash, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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No Coverage for Roof Collapse During Hurricane
January 29, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Fifth Circuit affirmed the district court's determination that the insured's roof collapse was not covered. Exclusive Real Estate Inv., L.L.C. v. S.G.L. No. 1, Ltd., 2023 U.S. App. LEXIS 29368 (5th Cir. Nov. 3, 2023).
A building owned by Exclusive Real Estate partially collapsed during a rain-storm. The insurer, SGL, inspected the roof and determined that there was no coverage. Exclusive sued SGL for breach of contract and bad faith. SGL moved for summary judgment, which was granted by the district court. Exclusive appealed.
The poicy covered "direct physical loss to the property" caused by windstorms. Exclusions, however, precluded coverage for losses "caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Forum Selection Provisions Are Not to Be Overlooked…Even On Federal Projects
September 16, 2024 —
David Adelstein - Florida Construction Legal UpdatesForum selection provisions are NOT to be overlooked. Ever. Treat them seriously. Even on federal projects where there is a Miller Act payment bond. Consider forum selection provisions on the front end when negotiating your contract.
In a recent opinion, U.S. f/u/b/o Timberline Construction Group, LLC vs. Aptim Federal Services, LLC, 2024 WL 3597164 (M.D.Fla. 2024), a joint venture prime contractor was hired by the federal government to build a temporary housing site. The joint venture prime contractor obtained a Miller Act payment bond. The joint venture then entered into a subcontract with one of its joint venture members and the member-subcontractor then engaged a sub-subcontractor. The sub-subcontractor claimed it was owed $3.5 Million and sued the member-subcontractor, as well as the prime contractor’s Miller Act payment bond, in the Middle District of Florida. The member-subcontractor and the Miller Act payment bond sureties moved to transfer venue to the Middle District of Louisiana pursuant to a forum selection clause in the contract between the sub-subcontractor and the member-subcontractor. The contract provided that the exclusive venue would be a United States District Court located in Louisiana.
Forum selection provisions are analyzed in federal court under 28 U.S.C. 1404(a): “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” U.S. f/u/b/o Timberline, supra at *2. A forum selection provision is presumptively valid and given controlling weight. Id. (quotations and citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Balestreri Potocki & Holmes Attorneys Named 2020 Super Lawyers and Rising Star
July 06, 2020 —
Balestreri Potocki & HolmesThe law firm of Balestreri Potocki & Holmes is pleased to announce that Shareholders
Thomas A. Balestreri, Jr. and
Joseph P. Potocki have been selected as 2020 Super Lawyers and Associate
Robin H. Smith has been named a 2020 Rising Star.
Each year no more than 5 percent of the lawyers in the state are selected to receive the honor of being included in the Super Lawyers list and no more than 2.5 percent of the lawyers are selected to the Rising Stars list.
Balestreri has been selected to the Super Lawyers list in the areas of Construction Litigation. Balestreri has dedicated most of his 30 plus years in practice to the representation of developers, property owners, and general contractors in litigation, negotiations, and risk management. A seasoned trial lawyer, he has tried a number of high exposure cases with great success.
Selected as a Super Lawyer in the area of Construction Litigation, Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas.
Smith has been named a Rising Star by Super Lawyers in the area of Civil Litigation. In her varied litigation practice, Smith represents individuals and business entities in complex catastrophic personal injury matters. She also represents employers in labor and employment matters and a variety of businesses, including automobile dealers, in breach of contract, unfair competition, unfair business practices, defamation, and consumer claims.
Super Lawyers, a Thompson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
Balestreri Potocki & Holmes is headquartered in San Diego, California. The firm provides comprehensive counsel to large and small companies across a wide range of established and emerging industries. Balestreri Potocki & Holmes is located in downtown San Diego at 401 B Street, Suite 1470. More information about the firm can be found at: www.bph-law.com.
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Balestreri Potocki & Holmes
