Avoiding Disaster Due to Improper Licensing
February 18, 2019 —
Candace Matson - Construction & Infrastructure Law BlogIT’S NOT ENOUGH FOR A CONTRACTOR TO BE LICENSED . . . it must be properly licensed.
We are reminded of this by the recent case of JMS Air Conditioning and Appliance Service, Inc. v. Santa Monica Community College District, Bernards Bros., Inc., 30 Cal. App. 5th 945 (2018). In that case, JMS entered into an $8.2M subcontract with Bernards to install an HVAC system in a new facility being built for the District. JMS held a C-20 warm-air heating, ventilating and air-conditioning license. A year into the project, Bernards sought permission from the District to substitute another subcontractor for JMS (as required under Public Contract Code Section 4107 for listed subcontractors on public works of improvement). Among other things, Bernards contended that JMS was not properly licensed to perform that portion of the work which consisted of hydronic plumbing and hydronic boiler work. JMS countered that this work was an integral part of installing an HVAC system, and relied on Business & Profession Code Section 7059, which permits work that is “incidental and supplemental to the performance of the work for which the specialty contractor is licensed,” and a California State Licensing Board regulation which defines “incidental and supplemental” as meaning “essential to accomplish the work in which the contractor is classified.” (Cal. Code Regs., tit. 16, §831.)
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Candace Matson, Sheppard MullinMs. Matson may be contacted at
cmatson@sheppardmullin.com
Recession Graduates’ Six-Year Gap in Homeownership
October 15, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to Zillow Real Estate Research, “Five years after completing their degree, young adults who graduate into a recession still have a lower homeownership rate than peers graduating into normal economic times. But at six years this gap disappears.”
Zillow’s research demonstrated “that graduating into a recession has a lasting adverse effect on young adults’ employment and earning, a phenomenon known as labor market ‘scarring.’” Furthermore, “Homeownership is closely tied to the labor market, particularly among young adults, and some preliminary evidence suggests that a similar ‘scarring’ effect occurs with respect to the homeownership rate among young adults who graduate into a weak economy.”
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California Makes Big Changes to the Discovery Act
March 04, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBeginning January of 2024, California amended the Civil Discovery Act to mirror the Federal Rules and require that any party appearing in a civil action to provide initial disclosures to any other party demanding the same.
In January of 2024, California amended the Civil Discovery Act, specifically C.C.P. section 2016.090, to affirmatively require that any party appearing in a civil action to provide initial disclosures to any other party demanding the same. In an effort to reflect the Federal Rule 26 disclosure requirements, as many other States have adopted, California will now also mandate (upon demand) that a party produce evidence without an arduous and possibly duplicative effort. In other words, this initial disclosure will require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action and to disclose information and records regarding insurance policies or contracts that would make a person or insurance company liable to satisfy a judgment.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
CISA Clarifies – Construction is Part of Critical Infrastructure Activities
April 20, 2020 —
Brenda Radmacher & Ernest Isola - Gordon & Rees Construction Law BlogAfter ongoing confusion by many over whether construction should be considered part of the “essential business,” during the COVID-19 pandemic, the Cybersecurity and Infrastructure Security Agency (CISA) issued an updated Coronavirus Guidance for America on March 28, 2020 to clarify construction’s critical role in supporting essential infrastructure. CISA’s initial advisory list referenced construction in regard to some areas such as energy and wastewater treatment, but it was unclear as to the whole of the construction industry. CISA’s update clarified that construction activities are included in its list of essential critical infrastructure workers. This new federal guidance should remove the ambiguity that led to varying responses by state and local officials halting some construction. The guidance clarifies that construction and related activities – including the manufacture and supply/delivery of supplies and equipment, permitting, safety, and inspections of projects – are covered as part of the critical infrastructure and economic activities.
The ongoing challenge will be for construction activities to proceed in a way that protects workers and the general public from the spread of coronavirus. However, contractors are always resourceful and have been implementing safety measures effectively on projects with an unwavering commitment to safety and are ready to meet this challenge. In addition to following the guidance from the CDC, we recommend that contractors implement a comprehensive safety program for their employees as well as for all parties that come onto the jobsite. It is critical that contractors have clear a clear plan for communications with their teams to ensure compliance with the CDC recommendations. This should include what has recently become standard protocol or social distancing, not hosting large group meetings and conducting meetings online or via conference call, maintaining a six-foot distance between people, discouraging hand-shaking or other contact, not sharing tools, and sanitizing reusable PPE. Contractors also should also be sure to place safety posters about “How to Protect Yourself” where they can be readily seen and encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance of a jobsite. We also recommend heightened site security including interviewing anyone coming to the jobsite.
Reprinted courtesy of
Brenda Radmacher, Gordon & Rees and
Ernest Isola, Gordon & Rees
Ms. Radmacher may be contacted at bradmacher@grsm.com
Mr. Isola may be contacted at eisola@grsm.com
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How to Build a Water-Smart City
August 23, 2021 —
Chris Malloy - BloombergCities across time have stretched to secure water. The Romans built aqueducts, the Mayans constructed underground storage chambers, and Hohokam farmers dug more than 500 miles of canals in what is now the U.S. Southwest.
Today’s cities use portfolios of technologies to conserve supply — everything from 60-story dams and chemicals to centrifugal pumps and special toilets. And yet, the cities of tomorrow will have to do more.
A recent United Nations report on drought says climate change is increasing the frequency, severity and duration of droughts, which contribute to food insecurity, poverty and inequality. The report also asserts that “drought has been the single longest-term physical trigger of political change in 5,000 years of recorded human history.” It calls for urgent action and a transformation in governance to manage modern drought risk more effectively.
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Chris Malloy, Bloomberg
Contractor Succeeds At the Supreme Court Against Public Owner – Obtaining Fee Award and Determination The City Acted In Bad Faith
September 20, 2021 —
Lindsay T. Watkins - Ahlers Cressman & Sleight PLLCA contractor won a rare but much-deserved victory at the Supreme Court on July 8, 2021 in Conway Construction Co. v. City of Puyallup, 197 Wn.2d 825, 490 P.2d 221 (2021). The case, which involved an aggressive stance by a public owner:
- confirmed that the public owner bears the burden of demonstrating a termination for default is justified,
- reaffirmed the requirement to provide an opportunity to cure, and
- rejected the public owner’s attempts to escape its own contract language that the contractor relied upon.
John Ahlers and Lindsay Watkins of Ahlers Cressman and Sleight and Jamie Becker of Osborne Construction submitted the Amicus Brief for the Associated General Contractors (AGC) of Washington in support of Conway to the Supreme Court.
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Lindsay T. Watkins, Ahlers Cressman & Sleight PLLCMs. Watkins may be contacted at
Lindsay.Watkins@acslawyers.com
Traub Lieberman Attorneys Burks Smith and Katie Keller Win Daubert Motion Excluding Plaintiff’s Expert’s Testimony in the Middle District of Florida
September 20, 2021 —
Burks A. Smith, III & Kathryn Keller - Traub LiebermanTraub Lieberman Partner, Burks Smith, and Associate, Katie Keller, represented a national property insurer in a breach of contract action brought by a homeowner in the Middle District of Florida for substantial property damage alleged to have been caused by hail and wind. Throughout the course of litigation, the homeowner disclosed his expert, which is the same individual that prepared the homeowner’s estimate of damages and causation report. The expert’s credentials list that he is a general contractor, independent adjuster, and inspector. Mr. Smith and Ms. Keller moved under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702 to exclude testimony and introduction of any evidence prepared by the homeowner’s expert. Mr. Smith and Ms. Keller argued that the homeowner’s expert was not qualified to render expert testimony in this case, as he did not have the requisite qualifications to render an expert opinion, the methodology utilized by the expert to form his opinion was not sufficiently reliable, and his anticipated testimony was not helpful in the case, as it is imprecise and unspecific. Therefore, the expert’s opinions did not meet the standards for admission of expert testimony as set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and should not be admitted as expert testimony at trial.
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Burks A. Smith, III, Traub Lieberman and
Kathryn Keller, Traub Lieberman
Mr. Smith may be contacted at bsmith@tlsslaw.com
Ms. Keller may be contacted at kkeller@tlsslaw.com
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Construction in Indian Country – What You Need To Know About Sovereign Immunity
July 22, 2019 —
Edward J. Hermes - Snell & Wilmer Under Construction BlogThere are many legal issues to consider when bidding on and building projects in American Indian Country. Which labor and employment laws apply? Are there contracting or hiring preferences that apply? Do the Prompt Pay Act and other state laws apply? Can I bring a lawsuit to enforce the contract and, if so, where would I file suit? This article addresses the final question, which is often the most important question when contracting with a tribal entity.
Many of the construction projects in American Indian Country are with tribes or entities wholly owned or by a tribe, such as housing authorities, casinos, hospitals, schools or other economic enterprises. Like the state and federal government, tribes (and their tribally—owned enterprises) enjoy sovereign immunity from any lawsuit, meaning they cannot be sued unless the tribe expressly agrees to waive its sovereign immunity. Sovereign immunity poses a unique issue for contractors that does not typically arise in other projects, but it need not be a deterrent to doing business with tribes. It is usually in the best interest of both the contractor and tribe to negotiate an acceptable waiver of sovereign immunity. Absent such a waiver, the tribe or tribal entity cannot be sued and the resulting forfeiture of remedies can be devastating for the contractor.
To waive sovereign immunity, the tribe must make it clear in the contract that it can be sued in a specific jurisdiction. Oklahoma Tax Comm'n v. Citizen Band Potawatomi tribe of Okla., 498 U.S. 505, 509 (1991). It does not matter whether the tribe is operating on or off its lands—if there is no express contractual waiver of sovereign immunity, a contractor will have no recourse in the event of non-payment or other breach of contract. See Kiowa tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).
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Edward J. Hermes, Snell & WilmerMr. Hermes may be contacted at
ehermes@swlaw.com
