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DIRECTORY AND CAPABILITIES

Colorado homebuilders target low-income buyers with bogus "affordable housing" bill

March 05, 2015 — Jesse Howard Witt – Acerbic Witt
“Affordable housing” is the latest catchphrase for Colorado homebuilders seeking immunity from warranty claims and repair requests. In 2013, the homebuilders’ lobby said it was about public transportation. In 2014 they said it was about community building. Now it’s 2015, and the lobbyists are claiming that a lack of affordable housing is the reason why politicians should eliminate consumer protections for homebuyers. The Colorado Senate recently announced the introduction of SB 15-177. If passed, the bill will make it illegal for homeowner associations to hire construction experts or lawyers unless they can first satisfy a complicated disclosure and voting process. Although sponsors portray the bill as an innocuous measure that merely requires more community involvement, its provisions have actually been tailored to take advantage of recent court decisions that make it difficult for homeowner associations to vote on measures outside of a meeting or act quickly to resolve construction defect disputes. The intent is to make it nearly impossible for homeowners to retain construction experts or legal representation before the statute of limitations period expires, thereby making homebuilders immune from any potential claims. The bill will also eliminate the right to a jury trial in many cases, forcing any disputes that overcome the procedural hurdles into costly, private arbitration proceedings. The sponsors argue that these measures are necessary to encourage builders to erect more cheap condominiums. Read the court decision
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Reprinted courtesy of Jesse Howard Witt, The Witt Law Firm
Mr. Witt welcomes comments at www.acerbicwitt.com

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DOI Aims to Modernize its “Inefficient and Inflexible” Type A Natural Resource Damages Assessment Regulations

March 25, 2024 — Amanda G. Halter, Jillian Marullo & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law Blog
The U.S. Department of the Interior (DOI) published a proposed rule aimed at modernizing and streamlining the “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Water Act (CWA). (The comment deadline was later extended.) The revisions, first previewed in a January 2023 Advanced Notice of Proposed Rulemaking (ANPR), are intended to fulfill “the original statutory purpose of providing a streamlined and simplified assessment process” with the overarching goal of facilitating settlements and expediting restoration efforts following injury resulting from pollution in a broader range of cases. The NRDA regulations provide two paths to assessing natural resource damages (NRD): (1) the more complex, site-specific Type B procedures for detailed NRDAs and (2) what is intended to be the standard, simplified Type A assessment procedures requiring minimal field observation. Particularly, the Type A process is reserved for two specific aquatic environments (coastal and marine areas or Great Lakes environments) when a relatively minor release of a single hazardous substance occurs, resulting in a smaller scale and scope of natural resource injury, and the rebuttal presumption for the Type A procedure is limited to damages of $100,000 or less under the current version of the rule. Reprinted courtesy of Amanda G. Halter, Pillsbury, Jillian Marullo, Pillsbury and Ashleigh Myers, Pillsbury Ms. Halter may be contacted at amanda.halter@pillsburylaw.com Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com Read the court decision
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California Court of Appeal Holds That the Right to Repair Act Prohibits Class Actions Against Manufacturers of Products Completely Manufactured Offsite

February 06, 2019 — Gus Sara - The Subrogation Strategist
In Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite. In Kohler Co., homeowners instituted a class action against Kohler, the manufacturer of water pressure and temperature regulating valves that were installed into their homes during original construction. The class action was filed on behalf of all owners of residential dwellings in California in which these Kohler valves were installed as part of original construction. The complaint asserted, among other claims, a cause of action under the Act. Kohler filed a motion for anti-class certification on the ground that causes of actions under the Act cannot be certified as a class action. The trial court denied the motion with respect to the Act but certified its ruling for appellate review. Kohler filed a petition with the Court of Appeals, arguing that certain sections of the Act explicitly exclude class action claims under the Act. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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California Supreme Court Addresses “Good Faith” Construction Disputes Under Prompt Payment Laws

June 06, 2018 — Garret Murai - California Construction Law Blog
It’s been a rollercoaster. But the ride appears to be over. In United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., Case No. S231549 (May 14, 2018), the California Supreme Court addressed whether a direct contractor can withhold payment from a subcontractor based on the “good faith dispute” exception of the state’s prompt payment laws if the “dispute” concerns any dispute between the parties or whether the dispute must be directly relevant to the specific payment that would otherwise be due. California’s Prompt Payment Laws California has a number of construction-related prompt payment laws scattered throughout the state’s Civil Code, Public Contracts Code and Business and Professions Code. Their application depends on the type of construction involved, whether public or private; the type of payment involved, whether a progress payment or retention; and who is paying, whether it’s a private owner, public entity, direct contractor, or subcontractor. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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The Power of Planning: Four Key Themes for Mitigating Risk in Construction

November 09, 2020 — Zac Hays - Construction Executive
Construction is, and always has been, known as a relatively risky business. Whether it is dealing with factors that can be controlled or beyond control, proactively managing risk has proven to be of the most critical factors in delivering quality projects faster, more efficiently and with wider margins. Many people assume on-site activities introduce the greatest amount of uncertainty and potential risk. But many mistakes in construction originate in the planning phase – meaning preconstruction is ripe with opportunity to be the most effective place for mitigating risk, saving money and ultimately broadening margins. There are many ways to mitigate risk before projects even start, but four key themes emerge to be clear, repeatable opportunities for success. DIGITIZE THE PLANNING PHASE Preconstruction is where ideas are brought to life by translating architectural designs into a real, constructible plan. Decisions made at this stage can determine the project’s success and profitability – but it’s far from straightforward. Estimating, scheduling and planning are highly complex activities that depend on constantly changing details and are all areas where missed information or miscommunication can lead to costly rework down the line. Reprinted courtesy of Zac Hays, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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BHA Has a Nice Swing: Firm Supports NCHV and Final Salute at 2017 WCC Seminar

May 03, 2017 — CDJ STAFF
Bert L. Howe & Associates (BHA) is excited to announce the return of their very popular Sink a Putt for Charity at the 2017 West Coast Casualty Construction Defect Seminar. This year, participant’s efforts on the green will help benefit both the National Coalition for Homeless Vets and Final Salute. As in years past, sink a putt in the BHA golf challenge and win a $25 Amazon gift card, and for every successful putt made, BHA will make a $25 cash donation in the golfer’s name to be distributed equally between these two worthy organizations. While at the booth, don’t forget to test out BHA’s industry leading data collection and inspection analysis systems. BHA has recently added video overviews to their data collection process, as well as next-day viewing of inspection data via their secured BHA Client Access Portal. Discover meaningful cost improvements that translate to reduced billing while providing superior accuracy and credibility. Also learn about BHA’s expanding market presence and full range of services in Texas, Florida, and across the Southeast United States. Attendees can also enter to win Dodger baseball tickets or a new iPad Pro! Other BHA giveaways include USB charging blocks, pocket tape measures, multi-tools, LED flashlights, and foam stress balls. For more information on the National Coalition for Homeless Vets, please visit: http://nchv.org/ To learn more about how Final Salute provides homeless women Veterans with safe and suitable housing, please visit: http://www.finalsaluteinc.org/ Read the court decision
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Bremer Whyte Sets New Precedent in Palos Verdes Landslide Litigation

August 26, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
In what is believed to be a groundbreaking new precedent, Bremer Whyte Brown & O’Meara’s Los Angeles litigation team has obtained a landmark ruling on behalf of residents in the “Portuguese Bend” neighborhood of Palos Verdes, California. Congratulations to Partner Michael D’Andrea and Senior Associate Shelly Mosallaei in receiving this result for our clients. Plaintiff, a real estate developer, sued a number of local residents and property owners, including our client, alleging that their failure to address landslides and geological disturbances around Plaintiff’s property constituted a legal trespass and nuisance. Plaintiff alleged that its plans to develop multiple lots in Palos Verdes was thwarted because Defendant’s soil and land encroached onto Plaintiff’s property. Plaintiff’s suit against multiple residents created an uproar in the community regarding who was ultimately responsible (if anyone) for natural soils movement that has plagued this neighborhood for years. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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When to Withhold Retention Payments on Private or Public Projects

August 29, 2018 — Nicholas Karkazis - Gordon & Rees Construction Law Blog
To ensure that construction contractors and subcontractors receive timely progress and retention payments, the California Legislature enacted statutes that impose deadlines and penalties on owners and direct (general) contractors who delay payments. (Cal. Civ. Code, §§ 8800, 8802, 8812, 8814; Pub. Contract Code, §§ 7107, 10262.5; Bus. & Prof. Code, § 7108.5.) However, there is an exception to these deadlines and penalties on both private and public projects. The exception allows an owner or direct contractor to withhold payment1 when there is a good faith dispute between an owner and a direct contractor or between a direct contractor and a subcontractor. (Civ. Code, §§ 8800, subd. (b), 8802, subd. (b), 8812, subd. (c), 8814, subd. (c); Pub. Contract Code, §§ 7107, subds. (c), (e), 10262.5, subd. (a); Bus. & Prof. Code, § 7108.5, subd. (a).) But the term “good faith dispute” has been a source of confusion where direct contractors owe subcontractors retention payments, but want to withhold the payment because of a dispute.2 California appellate courts were split, with one court finding that any type of bona fide dispute justified withholding, and another finding that only disputes related to the payment itself justified withholding. (Compare Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc. (2009) 179 Cal.App.4th 1401 [any bona fide dispute could justify withholding] with East West Bank v. Rio School Dist. (2015) 235 Cal.App.4th 742 [disputes related to the payment itself may justify withholding].) In May 2018, the California Supreme Court clarified that for a direct contractor to withhold a retention payment on a private project, the good faith dispute must somehow relate to the payment itself. (United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1097-1098.) Read the court decision
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Reprinted courtesy of Nicholas Karkazis, Gordon & Rees Scully Mansukhani
Mr. Karkazis may be contacted at nkarkazis@grsm.com

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