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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Mark Van Wonterghem To Serve as Senior Forensic Consultant in the Sacramento Offices of Bert L. Howe & Associates, Inc.
March 01, 2012 —
CDJ STAFFSacramento, CA — Bert L. Howe and Associates, Inc., is pleased to announce that Mark Van Wonterghem - General Contractor, has joined the firm as Senior Forensic Consultant. Mark will be responsible for leading the firm’s expansion in the newly formed Sacramento headquarters.
His focus will continue to be working with construction practice groups and claims professionals in the Sacramento and Bay Area markets. He will utilize the resources of the Construction Experts Group at Bert L. Howe & Associates in furthering the litigation support needs attendant to the firm’s Northern California clientele.
Mr. Van Wonterghem possesses extensive consulting and testimony experience. Through 32 years of experience in the construction industry he leverages extensive practical experience with multiple trades including concrete foundations, walls and flatwork, structural wood and steel framing, finish carpentry, drywall, lath & plaster/stucco, window & door installations, deck coating systems, metal and membrane flashings and above/below grade waterproofing. This trade experience encompasses both the commercial and residential construction sectors and has been vital in his ability to provide concise explanation of construction industry standards, as well as trade-specific standards of care.
Mr. Van Wonterghem has broad experience with all types of building construction ranging from concrete and steel commercial construction to high-end custom residential construction.
In connection with the Construction Experts Group at BHA, Mr. Van Wonterghem provides construction consulting and litigation support services to a wide variety of recognized construction claims professionals, owners, and publicly traded builders.
The firm’s Sacramento offices are located at the Gateway Oaks III office complex, 2520 Venture Oaks Way, Suite 435, Sacramento, CA 95833. Mr. Van Wonterghem can be reached via e mail at mvanwonterghem@berthowe.com or at (800) 783-1822.
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North Carolina Court Rules In Favor Of All Sums
July 13, 2020 —
Lorelie S. Masters & Patrick M. McDermott - Hunton Andrews KurthA North Carolina court recently ruled in favor of all sums allocation. Duke Energy Carolinas, LLC v. AG Insurance SA/NV, No. 17 CVS 5594 (N.C. Sup. Ct.). In that case, Duke Energy is seeking coverage for “liabilities linked to coal combustion residuals (‘CCRs’), i.e., coal ash, at fifteen Duke-owned power plants in North and South Carolina.” In a recent summary judgment decision, the court resolved a dispute between Duke and TIG Insurance Company, as successor to Ranger Insurance Company, about whether all sums allocation or pro rata allocation applied.
The court found that “the non-cumulation provisions make plain” that all sums allocation applied. It also noted that “a large majority of the courts in other jurisdictions that have considered this issue have recognized that non-cumulation provisions such as those here compel all sums rather than pro rata allocation.” The decisions to the contrary, according to the court, had ruled “done so on public policy grounds” and not based on “the application of the rules of contract interpretation.”
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth and
Patrick M. McDermott, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. McDermott may be contacted at pmcdermott@HuntonAK.com
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Construction Defect Scam Tied to Organized Crime?
July 31, 2013 —
CDJ STAFFThe Las Vegas Review-Journal reports that the initial tip-off came from Scott Canepa, a construction defect attorney who alerted the FBI about Leon Benzer’s activities in taking over homeowner boards. Canepa learned that Nancy Quon was taking part in the scheme and went to the FBI with the information. After FBI officials met with Canepa, they launched an investigation, which they named “Operation GrandMaster.”
Although a Benzer associate stated that Benzer claimed not to have ties to organized crime, and according to the Review-Journal, “preferred to think of himself as ‘just a bully,’” the case involves connections to a number of figures with ties to organized crime. Benzer with associated with John V. Spilotro, a lawyer whose uncle was an alleged overseer for Chicago organized crime operating in Las Vegas in the 70s and 80s. Another conspirator, Paul Citelli, reportedly has ties to organized crime in Buffalo.
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California Commission Recommends Switching To Fault-Based Wildfire Liability Standard for Public Utilities
June 25, 2019 —
Lawrence J. Bracken II, Sergio F. Oehninger, Paul T. Moura & Alexander D. Russo - Hunton Insurance Recovery BlogA state-appointed panel advised last week that California should change the standard for determining whether utilities are liable for wildfires. Under the current system, California’s Public Utilities Code § 2106 provides a private right of action by any person or entity that has suffered loss, damages, or injury caused by prohibited or unlawful acts of a public utility. Relying on this statute, property owners have asserted wildfire-related claims directly against allegedly culpable electric utility companies. Public utilities in California also face inverse condemnation claims arising out of wildfires. Under inverse condemnation, where private property is taken for public use and later damaged by the state or its agency, the state or agency is strictly liable to the property owner.
In an effort to reduce the financial impact on public utilities resulting from wildfires—as exemplified by Pacific Gas and Electric Co.’s recent filing for Chapter 11 protection in January—the California Commission on Catastrophic Wildfire Cost and Recovery recommended changing the current laws to reflect a fault-based standard. According to the panel, this change would reduce the risk of bankruptcy and decrease the cost of capital. The commission also recommended establishing a wildfire victims’ fund and setting up an electric utility wildfire board to handle the prevention and mitigation of utility-related wildfires.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Lawrence J. Bracken II,
Sergio F. Oehninger,
Paul T. Moura and
Alexander D. Russo
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Paul may be contacted at pmoura@HuntonAK.com
Mr. Alexander may be contacted at arusso@HuntonAK.com
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Texas Construction Firm Officials Sentenced in Contract-Fraud Case
August 07, 2018 —
Tom Ichniowski – Engineering News-RecordTwo top officials of a Texas construction company—Honest, Experienced, Reliable Contracting Solutions LLC—have been sentenced to federal prison terms for defrauding the State Dept. through a plan to steer more than $1 million in contracts to the company, the Dept. of Justice says.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Ten Newmeyer & Dillion Attorneys Selected to the Best Lawyers in America© 2019
September 17, 2018 —
Newmeyer & DillionNEWPORT BEACH, Calif. – AUGUST 15, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that ten of the firm's Newport Beach attorneys were recently recognized in their respective practice areas in The Best Lawyers in America© 2019.
Attorneys named to The Best Lawyers in America, include:
Jason M. Caruso
Personal Injury Litigation - Plaintiffs
Product Liability Litigation – Plaintiffs
Michael S. Cucchissi
Real Estate Law
Jeffrey M. Dennis
Insurance Law
Gregory L. Dillion
Commercial Litigation
Construction Law
Insurance Law
Litigation - Construction
Litigation - Real Estate
Joseph A. Ferrentino
Litigation - Construction
Litigation - Real Estate
Thomas F. Newmeyer
Commercial Litigation
Litigation - Real Estate
John O'Hara
Litigation - Construction
Bonnie T. Roadarmel
Insurance Law
Jane Samson
Real Estate Law
Carol Sherman Zaist
Commercial Litigation
Best Lawyers is the oldest peer-review publication within the legal profession with a history of over 35 years. Attorneys are selected through exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers. Their listings are published in 75 countries worldwide and are recognized for their reliable and unbiased selections.
Newmeyer & Dillion is immensely proud of these lawyers and looks forward to their continued contributions to the firm, and the Orange County community as a whole.
About Newmeyer & Dillion
For almost 35 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of cybersecurity and privacy, corporate, employment, real estate, construction, insurance law and trial work, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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Risk Transfer: The Souffle of Construction Litigation
December 13, 2022 —
Alexa Stephenson & Ivette Kincaid - Kahana FeldWho does not love a good souffle?! Enthusiasts will know that a great souffle is not something you can obtain quickly. Rather, it is common in restaurants to order the souffle as dessert at the beginning of the meal because it takes an hour to bake. Risk transfer – like a good souffle – also requires planning, preparation, and the right ingredients.
In construction litigation, attorneys are often not retained until after the project has been completed for several years as the dispute between the homeowner and the general contractor or developer took time to escalate to formal litigation. A significant part of defense counsel’s legal analysis involves assessing and evaluating risk transfer opportunities. For example, in the case of a general contractor or developer who did not self-perform the construction work but instead retained subcontractors to do so, counsel will assess if risk can be transferred from the general contractor or developer to the subcontractors who performed the work which the homeowners allege is defective. In other words, a developer or general contractor can reduce their risk (i.e. liability and money owed) by transferring said risk (i.e. pointing the finger at) to a third party.
Sounds easy, right? Unfortunately, just like the souffle making process, it is easier said than done. This task can be exceedingly difficult in the absence of contracts that contain strong indemnity and insurance provisions – the essential ingredients to effect risk transfer. Worry not! We have provided “baking” instructions for you below to help you get a great risk transfer souffle time and again.
Reprinted courtesy of
Alexa Stephenson, Kahana Feld and
Ivette Kincaid, Kahana Feld
Ms. Stephenson may be contacted at astephenson@kahanafeld.com
Ms. Kincaid may be contacted at ikincaid@kahanafeld.com
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