What Is a Construction Defect in California?
October 25, 2013 —
CDJ STAFFWilliam Naumann answers that question for the site SuperLawyers. Mr. Naumann notes that a construction defect “is a deficiency in the design or construction of a building or structure,” with specific examples of including “significant cracks in the slab and/or foundation; unevenness in floor slabs caused by abnormal soils movement; leaky roofs, windows, or door,” though he admits that he has not provided an all-inclusive list.
He also discusses the deadlines for various types of construction defects, which in California range from 1 year to 10 years, depending on what the defect is. Untreated wood posts only get two years, while steel fences must be free of defects for four.
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Additional Dismissals of COVID Business Interruption, Civil Authority Claims
December 29, 2020 —
Tred R. Eyerly - Insurance Law HawaiiAmong the recent decisions dismissing complaints for business interruption and civil authority coverage due to closures caused by COVID-19 are Pappy's Barber Shops, Inc. v. Farmers Group, Inc., 2020 U.S. Dist. LEXIS 166808 (S.D. Calif. Sept. 11, 2020) and Sandy Point Dental v. Cincinnati Insurance Co., 2020 U.S. Dist. LEXIS 171979 (E.D. Ill. Sept. 21, 2020). The difficulty in proving "direct physical loss" was the downfall of both cases.
In Pappy's, claims were made for business income losses insured as a result of local and state closure orders. The policy required "direct physical loss of or damage to property at the described premises." Plaintiffs argued that "direct physical loss of" did not require a tangible damage or alteration to property and that the loss of the ability to continue operating their businesses as a result of the government orders met this requirement.
The court relied upon a prior decision, 10E, LLC v. Travelers Indem. Co. of Connecticut, 2020 U.S. Dist. LEXIS 165252 (C.D. Calif. Sept. 2, 2020) [post here], where the court noted that under California law, losses from inability to use property did not amount to "direct physical loss" within the meaning of the policy.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Fracking Fears Grow as Oklahoma Hit by More Earthquakes Than California
July 09, 2014 —
Zain Shauk – BloombergSquinting into a laptop perched on the back of his pickup, Austin Holland searches for a signal from a coffee-can-sized sensor buried under the grassy prairie.
Holland, Oklahoma’s seismology chief, is determined to find the cause of an unprecedented earthquake epidemic in the state. And he suspects pumping wastewater from oil and gas drilling back into the Earth has a lot to do with it.
“If my research takes me to the point where we determine the safest thing to do is to shut down injection -- and consequently production -- in large portions of the state, then that’s what we have to do,” Holland said. “That’s for the politicians and the regulators to work out.”
So far this year, Oklahoma has had more than twice the number of earthquakes as California, making it the most seismically active state in the continental U.S. As recently as 2003, Oklahoma was ranked 17th for earthquakes. That shift has given rise to concern among communities and environmentalists that injecting vast amounts of wastewater back into the ground is contributing to the rise in Oklahoma’s quakes. The state pumps about 350,000 barrels of oil a day, making it the fifth largest producer in the U.S.
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Zain Shauk, BloombergMr. Shauk may be contacted at
zshauk@bloomberg.net
Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Litigation Counsel of America Honors Partner Victor Anderson with Peter Perlman Award
November 10, 2016 —
Victor R. Anderson, III – Haight Brown & Bonesteel LLPPartner Victor R. Anderson, III received the Peter Perlman Service Award in recognition of his efforts to improve the lives of others through his community service and charity work. The awards are presented to select attorneys throughout the year by the Litigation Counsel of America (LCA) to candidates whose exemplary contributions merit commendation.
The Litigation Counsel of America is a close-knit, peer-selected, and aggressively diverse honorary society of 3,500 of the best trial lawyers. Less than one-half of one percent of American lawyers, vigorously vetted for skills, expertise, and service are invited to be on the Counsel.
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Victor R. Anderson, III, Haight Brown & Bonesteel LLPMr. Anderson may be contacted at
vanderson@hbblaw.com
Kahana Feld Receives 2024 OCCDL Top Legal Organizations for DEI Award
September 30, 2024 —
Linda Carter - Kahana FeldIRVINE, CA – Sep. 12, 2024 – Kahana Feld is pleased to announce that the firm received the 2024 Top Legal Organizations for DEI Award from the Orange County Coalition for Diversity in the Law (OCCDL). The firm will be recognized at an awards gala at The Westin South Coast Plaza on October 3.
Each year, the OCCDL recognizes individuals and organizations who have advanced diversity, equity, and inclusion in the Orange County legal community, whether through their excellence in the law or their direct efforts to promote DEI. Kahana Feld was recognized for programs such as its DEI book club and its regular webinars on topics like implicit bias. The firm supports various DEI organizations and initiatives in the Orange County area, including the Orange County Asian American Bar Association, the Orange County Women Lawyers Association, and the Jewish Federation of Orange County.
The OCCDL is a collaborative effort of professionals from leading Orange County law firms and other community partners promoting the advancement of diverse attorneys in Orange County. The OCCDL partners with local schools and organizations to increase community involvement and provides education focused on diversity to students and attorneys.
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Linda Carter, Kahana FeldMs. Carter may be contacted at
lcarter@kahanafeld.com
Mechanics Lien Release Bond – What Happens Now? What exactly is a Mechanics Lien and Why Might it Need to be Released?
January 04, 2021 —
William L. Porter - Porter Law GroupMechanics Lien Release Bond – What Happens Now? What exactly is a Mechanics Lien and Why Might it Need to be Released?
California law entitles unpaid contractors, subcontractors, and material suppliers to record a mechanics lien on property where they performed work or supplied materials. The mechanics lien attaches to the real property as a legal interest and secures the right to payment for the work performed and materials supplied. If payment is not forthcoming the mechanics lien allows the property where the work was performed and materials supplied to be sold under court order to satisfy the debt. It is a powerful remedy against owners and their agents who do not pay for work performed and materials supplied to improve the owner’s property.
A Mechanics Lien Release Bond Frees Property from a Mechanics Lien
Owners typically do not wish to have their property sold out from under them. Fortunately for owners, there is a method by which a mechanics lien can be substituted for another interest and sale of the property thereby avoided. This method is through the use of a mechanics lien release bond. California Civil Code §8424 allows a property owner or contractor effected by a mechanics lien to record a mechanics lien release bond equal to 125 percent of the lien amount with the County Recorder where the mechanics lien has been recorded. The effect of this is to substitute the mechanics lien release bond for the mechanics lien itself, thereby relieving the property from the possibility of that property being sold to satisfy the debt. Instead, any payment made will come from the release bond.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
SunTrust Will Pay $968 Million to Resolve Mortgage Probes
June 18, 2014 —
Tom Schoenberg – BloombergSunTrust Banks Inc. (STI) agreed to pay $968 million to resolve federal and state claims that a unit misrepresented the quality of mortgages the bank originated and deceived homeowners on loans it serviced.
The agreement covers loans SunTrust Mortgage made from January 2006 through March 2012 that were backed by the Federal Housing Administration even though they didn’t meet agency requirements, the Justice Department said in a statement today. Atlanta-based SunTrust disclosed the agreement in an October regulatory filing and has already accounted for the payment.
“SunTrust’s conduct is a prime example of the widespread underwriting failures that helped bring about the financial crisis,” Attorney General Eric Holder said in a statement. “We will continue to hold accountable financial institutions that, in the pursuit of their own financial interests, misuse public funds and cause harm to hardworking Americans.”
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Tom Schoenberg, BloombergMr. Schoenberg may be contacted at
tschoenberg@bloomberg.net
