Prevailing HOAs Not Entitled to Attorneys’ Fees in Enforcement Actions Brought Under Davis-Stirling
August 30, 2017 —
Lawrence S. Zucker II & Michael C. Parme – Haight Brown & Bonesteel LLPIn Retzloff v. Moulton Parkway Residents’ Ass’n, (2017) Cal. App. LEXIS 727, the Fourth District Court of Appeal considered the novel question of whether attorneys’ fees can be included as part of the cost award to a ‘prevailing association’ under Cal. Civ. Code §5235(c).
Plaintiffs were former board members of Moulton Parkway Residents’ Association, No. One (“the Association”) who sued the Association for alleged violations of the Davis-Stirling Common Interest Development Act (Civ. Code §4000 et. seq.) which regulates the governance of common interest developments such as condominium communities and homeowners associations. Plaintiffs’ suit alleged that the Association regularly conducted business outside of scheduled board meetings and failed to make certain records available for inspection.
Reprinted courtesy of
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP and
Michael C. Parme, Haight Brown & Bonesteel LLP
Mr. Zucker may be contacted at lzucker@hbblaw.com
Mr. Parme may be contacted at mparme@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Subcontractor Not Liable for Defending Contractor in Construction Defect Case
February 10, 2012 —
CDJ STAFFThe California Court of Appeals has ruled on January 9, 2012 in Hensel Phelps Construction Company v. Urata & Sons Cement, upholding the judgment of the lower court.
Hensel Phelps was the general contractor for a high-rise in Sacramento. They were sued by the owners of the building after problems were discovered in the concrete slabs of the building’s parking garage. Instead of welded steel wire mesh, the slabs had been constructed with fiber mesh. Hensel Phelps filed a cross-complaint against Urata Cement, the subcontractor that had performed the cement work. Urata refused to defend Hensel Phelps. The owners’ case was subsequently dismissed due to the statute of limitations.
Although the original case was over, Hensel Phelps continued in their claims against Urata. “Urata argued that a handwritten interlineation required Hensel Phelps to prove Urata was at fault for the injury alleged in the building owners’ complaint before Urata was obliged to defend Hensel Phelps in that action.”
The lower court concluded that Urata would have been obligated to defend Hensel Phelps if the owners’ lawsuit had alleged that the damage was due to the subcontractor’s work or if evidence at trial established this. The lower court found neither of these true. Instead, the use of the fiber mesh was a design issue and “that decision was outside the scope of the subcontractor’s work.”
During the trial, Hensel Phelps conceded that Urata was not at fault. The appeals court could find no reading of the contract that would cause Urata to be obligated to defend Hensel Phelps, calling Hensel Phelps’s reading of the contact as “grammatically infeasible.”
Judges Nicholson, Raye, and Butz upheld the decision of the lower court and awarded costs on appeal to Urata.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
New Mandatory Bond Notice Forms in Florida
December 16, 2019 —
Brian A. Wolf & Miles D. Jolley - Smith CurrieSubcontractors and suppliers must now use new, statutory notice of nonpayment forms to preserve payment bond claims, and sign each notice of nonpayment under oath.
The State of Florida instituted changes to the statutes governing public-project payment bonds (section 255.05, Florida Statutes) and private-project payment bonds (section 713.23, Florida Statutes). The changes went into effect on October 1, 2019. Previously, notices of nonpayment were not required to be signed under oath. Now, the law requires the use of specific statutory notice forms that claimants must sign under oath. Previously, there were no statutory penalties for claimants who exaggerated the amount claimed against a payment bond. Now there are specific statutory penalties against a claimant who willfully or negligently signs a notice of nonpayment that includes a claim for work not performed or materials not furnished, or who is guilty of signing a notice prepared with willful or gross negligence.
Public construction payment bonds are governed by section 255.05, Florida Statues, also known as Florida’s Little Miller Act. This statute requires all payment bond claimants who don’t have a direct contract with the general contractor to serve both the bonding company and the general contractor with a notice of nonpayment no later than 90 days after their last date of work or last delivery of materials. The amended statute now requires that the claimant use the statutory notice form and sign the form under oath. If the claimant includes exaggerated claims, or intentionally makes a claim for work or materials not provided, or otherwise prepares a notice with gross negligence, then the bonding company and the general contractor will be able to use such as a complete defense to an otherwise valid bond claim.
Reprinted courtesy of
Brian A. Wolf, Smith Currie and
Miles D. Jolley, Smith Currie
Mr. Wolf may be contacted at bawolf@smithcurrie.com
Mr. Jolley may be contacted at mdjolley@smithcurrie.com
Read the court decisionRead the full story...Reprinted courtesy of
Superintendent’s On-Site Supervision Compensable as Labor Under Miller Act
March 13, 2023 —
David Adelstein - Florida Construction Legal UpdatesA recent Miller Act payment bond decision out of the District of Columbia Circuit Court of Appeals, U.S. f/u/b/o Civil Construction, LLC v. Hirani Engineering & Land Surveying, PC, 58 F.4th 1250 (D.C. Circ. 2023), dealt with the issue of whether a subcontractor’s superintendent constitutes recoverable “labor” within the meaning of the Miller Act and compensable as a cost under the Miller Act that typically views labor as on-site physical labor.
The issue is that the Miller Act covers “[e]very person that has furnished labor or material in carrying out work provided for in a contract.” Civil Construction, supra, at 1253 quoting 40 U.S.C. s. 3133(b)(1). The Miller Act does not define labor. The subcontractor claimed labor includes actual superintending at the job site. The surety disagreed that a superintendent’s presence on a job site constitutes labor as the superintendent has to actually perform physical labor on the job site to constitute compensable labor under the Miller Act.
The subcontractor argued its subcontract and the government’s quality control standards required detailed daily reports that verified manpower, equipment, and work performed at the job site. It further claimed its superintendent had to continuously supervise and inspect construction activities on-site: “[the] superintendent had to be on-site to account for, among other things, hours worked by crew members, usage and standby hours for each piece of equipment, materials delivered, weather throughout the day, and all work performed. These on-site responsibilities reflected the government’s quality control standards, under which the superintendent as ‘the most senior site manager at the project, is responsible for the overall construction activities at the site…includ[ing] all quality, workmanship, and production of crews and equipment.” Civil Construction, supra, at 1253-54.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Haight Brown & Bonesteel Attorneys Named Best Lawyers in America ® 2016
February 23, 2016 —
Haight Brown & Bonesteel LLPJanuary 21, 2016 - The Best Lawyers in America® 2016, is the oldest and most respected peer-review publication in the legal profession. Haight Brown & Bonesteel attorneys earning this honor for 2016 include the following:
William G. Baumgaertner - Personal Injury Litigation
Denis J. Moriarty - Insurance Law
Since its inception in 1983, Best Lawyers has become regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
Read the court decisionRead the full story...Reprinted courtesy of
Haight Brown & Bonesteel LLP
Meet BWBO’s 2024 San Diego Super Lawyers Rising Stars!
April 29, 2024 —
Bremer Whyte Brown & O'Meara LLPBWB&O is proud to announce San Diego Partner
Johnpaul Salem, and Associates
Christina Matian and
Angelo Perillo have been selected in the 2024 San Diego Super Lawyers list as Rising Stars for their work in Civil and Personal Injury Litigation. To read Super Lawyers’ digital publication, please click
here.
SELECTED AS RISING STARS
Johnpaul Salem: 2023-2024
Christina Matian: 2024
Angelo Perillo: 2024
Super Lawyers 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 objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
Read the court decisionRead the full story...Reprinted courtesy of
Bremer Whyte Brown & O'Meara LLP
Insurer Must Indemnify Additional Insured After Settlement
October 21, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe court determined that Target was an additional insured under its supplier's policy and the insurer had a duty to indemnify Target after it settled the underlying suit. Selective Ins. Co. v. Target Corp., 2015 U.S. Dist. LEXIS 123230 (E.D. Ill. Sept. 15, 2015).
Angela Brown sued Target when she was allegedly injured by a door to a fitting room that came unhinged and fell on her head. Harbor Industries, Inc. supplied Target with its fitting rooms. Pursuant to the "Supplier Qualification Agreement" (SQA), Harbor named Target as an additional insured under its policy with Selective Insurance Company. The SQA became effective and was to remain in effect until terminated by either party. A second agreement, the "Program Agreement," set forth the terms under which Harbor sold the fitting rooms to Target. The Program Agreement went into effect on April 23, 2009, and expired on July 1, 2010. Brown's injury occurred on December 17, 2011, while the SQA and the policy were in effect, but after the Program Agreement expired.
After Brown's injury, Target tendered to Selective, who denied coverage, contending Target was not an additional insured. The policy's endorsement expanded insureds to any additional insured whom Harbor agreed in a written contract to add as an additional insured. Selective filed suit and the parties filed cross-motions for summary judgment.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Supreme Court Declines Request to Expand Exceptions to Privette Doctrine for Known Hazards
January 17, 2022 —
Garret Murai - California Construction Law BlogFirst things first. Happy New Year! Hope you had a good one.
To start things off in the new year we’ve got an employment-related case for you – Gonzalez v. Mathis, 12 Cal.5th 29 (2021) – a California Supreme Court case involving the Privette Doctrine. For those not familiar with the Privette Doctrine, the Privette Doctrine is named after the case Privette v. Superior Court, 5 Cal.4th 689 (1993), which held that project owners and higher-tiered contractors are not liable for workplace injuries sustained by employees of lower-tiered contractors. Since then, courts have carved out a few exceptions to the Privette Doctrine including the “retained control exception” (also known as the Hooker exception – that’s the name of the case not the occupation of the injured worker) whereby a “hirer,” that is, the higher-tiered party who hired the lower-tiered party whose employee is injured, can be held liable if the hirer: (1) retains control over any part of the lower-tiered party’s work; and (2) negligently exercises that control in a manner that affirmatively contributes to the worker’s injury.
Another exception is the “concealed hazard exception” (also known as the Kinsman exception) whereby a hirer can be held liable if: (1) the hirer knew, or should have known, of a concealed hazard on the property that the lower-tiered contractor did not know of and could not have reasonably discovered; and (2) the hirer railed to warn the lower-tiered contractor of that hazard.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
