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Attorney's Erroneous Conclusion that Limitations Period Had Not Expired Was Not Grounds For Relief Under C.C.P. § 473(b)

February 27, 2019 — David W. Evans & Stephen J. Squillario
In Jackson v. Kaiser Foundation Hospitals, Inc. (2/8/19 No. A150833), the First District Court of Appeal affirmed the trial court’s denial of a motion for relief from a voluntary dismissal, without prejudice, filed by the plaintiff based on the erroneous conclusion of an attorney who she had consulted (but who had not yet appeared as counsel in her case) that the applicable statute of limitations had not yet expired. In reality, the limitations period had expired on the same date plaintiff had filed her complaint in propria persona. The plaintiff later retained the attorney on a limited basis to present the motion for relief pursuant to Code of Civil Procedure § 473(b) based on the attorney’s affidavit of fault. Therein, the attorney testified that he had advised the plaintiff to dismiss her action voluntarily based on a misinterpretation of the applicable limitations period, which the attorney characterized as having been based on his “mistake, inadvertence, surprise, or neglect.” Section 473 provides two distinct provisions for relief from default or dismissal – one is discretionary, while the other is mandatory. Discretionary relief is available in the case of an attorney’s mistake, inadvertence, surprise, or excusable neglect. In contrast, mandatory relief is available where the resulting dismissal was caused by an attorney’s mistake, whether or not excusable. In denying the plaintiff’s motion, the trial court reasoned that the plaintiff could not rely upon Section 473(b) because (1) the attorney did not represent the plaintiff at the time and (2) this provision did not apply to the voluntary dismissal of an action without prejudice. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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CGL Coverage Dispute Regarding the (J)(6) And (J)(7) Property Damage Exclusions

April 18, 2023 — David Adelstein - Florida Construction Legal Updates
A new insurance coverage opinion dealing with a commercial general liability’s (CGL) duty to defend involved exclusions commonly known as the (j)(6) and (j)(7) property damage exclusions (and in certain policies known as the (j)(5) and (j)(6) exclusions). These are the exclusions that apply during ongoing operations. Exclusion (l), or the “your work” exclusion, applies post-completion, i.e., it is an exclusion for “property damage” to “your work” included in the “products-completed operations hazard.” Exclusions (j)(6) and (j)(7) in the policy at-issue exclude coverage for property damage to:

(j)(6) That particular part of real property on which any insured or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; (j)(7) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

DEP Plan to Deal with Noxious Landfill Fumes Met with Criticism

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
Residents of Roxbury, New Jersey have dealt with hydrogen sulfide fumes coming from the Fenimore landfill, which gives off a rotten-egg smell and many say have “made them or their children sick,” according to New Jersey Online. The Department of Environmental Protection (DEP) announced their plan to fix the situation, which is to “first dig more wells at Fenimore, to help feed noxious gasses into the oxidizer and scrubber system the agency has credited with radically reducing smells over the last several months.” But no one seems to be satisfied with the plan, according to New Jersey Online: “Not state Sen. Anthony R. Bucco, who authored a bill to enable a state takeover of the site last year. Not the Roxbury Township Council. Not the activist group created to respond to Fenimore issues. Not one of the state's most vocal environmental organizations. And not the site's owner, who has been in multi-pronged litigation with the state for months.” Roxbury’s mayor, Jim Rilee, stated, “The council and I will continue to demand that the DEP show us compelling data that supports its conclusions and that its plan is based only on what is best for Township residents," as quoted by New Jersey Online. Read the court decision
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Form Contracts are Great, but. . .

November 12, 2019 — Christopher G. Hill - Construction Law Musings
Recently I was discussing the ConsensusDOCs with a colleague and friend and had a revelation. These forms are used often (though somewhat less than their AIA counterparts and less than they should be used). Quick disclaimer: I have been a part of a couple of drafting committees for ConsensusDOCs and am friends with Brian Perlberg, general counsel to the drafting effort. Some of the reason that these forms are so widely used is that they can be applied in a general way to almost any situation. Both sets of forms have documents for small and large jobs. Both have forms for Contractor/Owner and Contractor/Subcontractor. In short, a form document exists for about any scenario. I am writing now to let you know that while forms are great, they are just that. . . forms. Like with any set of forms, they need to be “tweaked” for your particular project. In my opinion they both have great clauses in them, and both have some flexibility built in (ConsensusDOCS more at the moment than the AIA forms). At the very least, construction professionals need to use this flexibility to conform the documents to their particular situation and do so within the documents themselves and not with addenda that “strike” or “modify” particular clauses. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Vincent Alexander Named to Florida Trend’s Legal Elite

August 10, 2020 — Vincent Alexander - Lewis Brisbois
Fort Lauderdale Partner Vincent F. Alexander has been named to Florida Trend’s Legal Elite as both a Legal Leader and an Up & Comer. In receiving this recognition, Mr. Alexander joins the less than 2% of active Florida Bar members who appear on this exclusive list. In addition, as a Legal Elite Up & Comer, Mr. Alexander is among only 112 attorneys who received the most votes in a special category for attorneys under the age of 40 who have exhibited leadership in the law and in their community. Florida Trend’s Legal Elite, now in its 17th year, presents the state’s top licensed and practicing attorneys selected by their peers. In composing its 2020 edition of Legal Elite, Florida Trend invited all in-state Florida Bar members to name attorneys who they hold in high regard or who they would recommend to others. The publication also asked voters to name three up and coming attorneys. Nominated attorneys were then scored based on the number of votes that they received, with more weight assigned to votes from outside of their own firms. Read the court decision
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Reprinted courtesy of Vincent Alexander, Lewis Brisbois
Mr. Alexander may be contacted at Vincent.Alexander@lewisbrisbois.com

Toll Brothers Shows how the Affluent Buyer is Driving Up Prices

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
John McManus of Big Builder explained how prices per square foot are rising due to an increase in more affluent buyers: “Discretionary buyers—ones with access to cash treasure troves, robust and growing stock portfolios, sovereign wealth in search of anti-inflationary investment, and, for good measure, throw in a smattering of seven-figure income households flush with this year’s bonus payouts—are who, unit by unit, have electrified the housing market’s recovery on the heels of institutional bulk buyers of 2012 and early 2013.” Toll Brothers, according to McManus, “was, is, and will be the organization most committed to home buying’s discretionary buyer.” “Thanks to the demand for luxury, and for three- and four-bedroom places, we’re seeing pricing-per-square-foot get better and better the greater number of square feet we offer,” David Von Spreckelsen, Toll Brothers City Living division president, told Big Builder. Read the court decision
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Proving Contractor Licensure in California. The Tribe Has Spoken

October 21, 2015 — Garret Murai – California Construction Law Blog
As I mentioned in an earlier post, in California you must “prove” you’re a licensed contractor in a construction case. But in whose hands are you entitled to place your fate – the judge or the jury? Well, the tribe has spoken. Jeff Tracy, Inc. v. City of Pico Rivera In Jeff Tracy, Inc. v. City of Pico Rivera, Case Nos. B258563 and B258648, California Court of Appeals for the Second District (September 15, 2015), general contractor Jeff Tracy, Inc. doing business as Land Forms Construction (“Land Forms”) was walloped with a nearly $5.5 million judgment for being improperly licensed on a park project owned by the City of Pico Rivera (“City”). The judgment followed a bench trial over Land Form’s objection that it was entitled to a jury trial. 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

Biggest U.S. Gas Leak Followed Years of Problems, State Says

June 10, 2019 — Mark Chediak & Edvard Pettersson - Bloomberg
The worst natural gas leak in U.S. history, which broke out at a Sempra Energy storage field near Los Angeles almost four years ago, was caused by corrosion, according to a report commissioned by California regulators. The rupture of a 7-inch (18-centimeter) well casing at Sempra Energy’s Aliso Canyon storage complex was due to “microbial corrosion” brought on by contact with groundwater, an independent analysis conducted by Blade Energy Partners and commissioned by two state agencies found. The report also concluded there had been more than 60 leaks in the field dating back to the 1970s, and Sempra didn’t carry out detailed inspections after they occurred, the California Public Utilities Commission and Department of Conservation said in a joint statement. The company’s Southern California Gas lacked “any form of risk assessment” to manage the integrity of its wells and hadn’t established systematic practices to protect against corrosion and monitor well pressure, the agencies said. Reprinted courtesy of Mark Chediak, Bloomberg and Edvard Pettersson, Bloomberg Read the court decision
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