California’s One-Action Rule May Apply to Federal Lenders
June 09, 2016 —
Anthony J. Carucci – Snell & Wilmer Real Estate Litigation BlogCalifornia’s one-action rule provides that “[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein . . . .” Cal. Code Civ. Proc. § 726(a). In other words, the one-action rule prescribes that the only process for recovery of a debt secured by a mortgage or deed of trust is to foreclose on the lien. The rule aims to prevent a multiplicity of actions and vexatious litigation, and to force a beneficiary to look to all of the security as the primary fund for payment of a debt before looking to the trustor’s other assets.
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Anthony J. Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
Managing Partner Jeff Dennis Recognized as One of the Most Influential Business People & Opinion Shapers in Orange County
November 17, 2016 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – Nov 15th, 2016 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that managing partner Jeff Dennis was selected as one of the 500 most influential business people and opinion shapers in Orange County by the Orange County Business Journal (OCBJ). Dennis will be recognized in OCBJ’s inaugural issue, OC500, publishing November 14, 2016.
Located in the Newport Beach office, Dennis currently serves as the Firm’s Managing Partner and specializes in a variety of litigation arenas, including construction, real estate and business litigation. He also handles insurance and higher education matters. Tom Newmeyer, Newmeyer & Dillion’s Co-founding Partner, believes the award is representative of the leadership displayed by Dennis. “Jeff is an uncanny consensus builder, and you can see his steady hand in the firms’ growth and success. This recognition is a testament to his strong commitment to the community and his ability to facilitate innovative changes in Orange County.”
Dennis believes that community participation is a vital part of his law practice. He currently serves on the Executive Leadership Team for the American Heart Association’s Orange County Heart Walk. Under Dennis’ leadership, the firm proudly supports the OC Heart Walk, with over 150 participants joining Team N&D in 2016. As such, he volunteered to serve in the Orange County District Attorney’s selective Trial Advocacy Partnership (TAP) program. He is the past president of the Occidental College Board of Governors and helped lead Occidental’s Alumni Association as its former Orange County Regional Chair.
About Newmeyer & Dillion
For more than 30 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 business, employment, real estate, construction and insurance law, 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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The Preservation Maze
June 12, 2023 —
Sofya Uvaydov - Kahana & Feld LLPTo appropriately preserve an issue for appeal is frankly confusing to many attorneys due to differing rules depending on the issue or procedural posture (presumably why appellate attorneys are more commonly used during trial). On May 25th, the US Supreme Court handed down Dupree v. Younger, 598 U.S. __ (2023) clarifying preservation requirements from denied summary judgment orders. When a federal court denies summary judgment on sufficiency of evidence grounds, a party must raise the argument again post-trial to preserve it for appeal as per the Court’s prior ruling in Ortiz v. Jordan, 562 U.S. 180 (2011). When a court denies summary judgment on a purely legal issue, the Court unanimously held that the issue is preserved in an appeal from a final judgment without having to raise it again post-trial. The Supreme Court distinguished this from their prior rule in Ortiz by explaining that sufficiency or factual issues which were previously denied at summary judgment must be evaluated based on the totality of the evidence adduced at trial. A purely legal issue decided on summary judgment is not changed by factual evidence at trial.
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Sofya Uvaydov, Kahana & Feld LLPMs. Uvaydov may be contacted at
suvaydov@kahanafeld.com
Insurer's Quote on Coverage for Theft by Hacker Creates Issue of Fact
December 16, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe appellate court found that the insurer's quote created an issue of fact on whether loss caused by a computer hacker would be covered. Metal Pro Roofing, LLC v. Cincinnati Ins. Co., 2019 Ind. App. LEXIS 355 (Ind. Ct. App. Aug. 9, 2019).
The insureds, Metal Pro Roofing, LLC and Cornett Restoration, LLC ("LLC's") discovered that their bank accounts had been hacked and over $78,000 stolen. They submitted claims to their insurer, Cincinnati. Coverage was denied, and the LLCs filed suit. Cross-motions for summary judgment were filed, and the court granted summary judgment to Cincinnati.
The "Forgery or Alternation" coverage applied to losses resulting directly from the "'forgery' or alteration of checks, drafts, promissory notes, or similar written promises, order or directions to pay a sum of money." "Forgery" was defined as "the signing of the name of another person or organization with the intent to deceive." The LLCs did not cite any evidence that the hacker "signed" anything, let alone that they signed "the name of another person or organization."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Municipal Ordinances Create Additional Opportunities for the Defense of Construction Defect Claims in Colorado
August 22, 2022 —
Ricky Nolen - Colorado Construction Litigation BlogMunicipal ordinances may provide additional defenses for construction professionals where state law does not provide sufficient protection for Colorado’s builders. Colorado state law can be a minefield of potential liability for construction professionals. Even though the state legislature has stated that it must “recognize that Construction defect laws are an existing policy issue that many developers indicate adds to for-sale costs,” the legislature has remained hesitant to provide any meaningful protection from construction defect claims, resulting in almost unlimited exposure for Colorado’s construction professionals.
Given this background of state laws that do not go far enough in protecting Colorado’s construction professionals, it may be fruitful to review municipal ordinances for new defenses and to temper state law developments applicable to construction defect claims. This is an area of law that is only just developing in Colorado. In fact, the ordinances discussed in this article were only passed in the last two years with many cities only adopting the present versions of the ordinances in 2021. The two model ordinances discussed below are potentially helpful in three ways. The first model ordinance gives construction professionals a right to repair defects in the multi-family construction and in the common interest community context. The second model ordinance is helpful in two ways. First, it establishes that homeowners associations may not unilaterally circumvent ADR protections included in the original declarations for such communities.[1] Second, the ordinance reduces the risk that strict liability will be imposed on a construction professional where a building code is violated.
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Ricky Nolen, Higgins, Hopkins, McLain & Roswell, LLCMr. Nolen may be contacted at
nolen@hhmrlaw.com
The NAR asks FAA to Amend their Drone Rules for Real Estate Use
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFHousing Wire reported that the National Association of Realtors (NAR) “is pushing for an exception for Realtors in the current rules on Unmanned Aerial Vehicle (UAV) technology since their motives don’t disrupt safety concerns, according to a letter sent on Tuesday to the FAA.”
According to Housing Wire, the NAR believes that real estate professionals would benefit from UAV technology, more commonly referred to as drones, in a variety of ways, “including, law enforcement, environmental scanning, geographical surveys and disaster recovery assessments.”
The NAR stated, as quoted in Housing Wire, “Use of UAV technology by the real estate industry is simple compared to other applications such as land surveying or law enforcement. The use of UAV technology would be limited in scope to the property itself. Properly written regulation would permit the use of UAV technology within the real estate industry, while maintaining safety in the NAS and privacy of citizens.”
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The California Legislature Return the Power Back to the People by Passing the California Consumer Privacy Act of 2018
January 02, 2019 —
Richard H. Glucksman, Esq., David A. Napper, Esq., & Lana Halavi – Chapman Glucksman Dean Roeb & BargerIntroduction
Data breaches and social media hacks are becoming increasingly common stories on the news cycle. Meanwhile, companies have made fortunes on unsuspecting individuals by selling information gathered on the user. Every internet user has wondered why a pop-up ad or banner on an unrelated website relates to something you purchased or searched for "that one time. The California legislature has decided to return some power back to the people with the California Consumer Privacy Act of 2018. California is the first state to introduce privacy protection for individuals personal data and could pave the way for other states to follow suit in the near future.
The California Consumer Privacy Act of 2018
On June 28, 2018, California Governor Jerry Brown signed into law the California Consumer Privacy Act of 2018 ("the Act"). The California Legislature eagerly passed the Act, which comes into effect on January 1, 2020, granting broad new privacy rights to "consumers" and enforcing requirements on the protection of their personal data allowing consumers the right to take back control of their personal information.
A "consumer" is defined as a "resident of California as defined by California's personal income tax regulations. "Personal information" pursuant to the Act is defined as "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household." Personal information is generally recognized in California as information that can identify a specific individual. The Act also includes information that can be used to identify a household.
Provisions of the Act
Pursuant to the Act, consumers are given the right to know upon request if their personal information is disclosed, and to whom it is disclosed, the right to know what personal information has been collected about them by a business, the right to object to the sale of their personal information, the right to obtain data collected about them, the right to require businesses to obliterate their personal information, and the right to be given equal service and pricing from businesses, including equal prices and quality of goods or services. The Act forbids discrimination by businesses against consumers for exercising their privacy rights pursuant to the Act.
Businesses are, however, permitted to charge different prices or provide different quality of service to consumers if the difference is "reasonably related to the value provided to the consumer by the consumer’s data." Additionally, businesses must allow consumers to exercise their rights by providing to consumers toll-free telephone numbers and/or websites to request such information or privacy. If a consumer sends a verified request for information to a business, the business subsequently has 45 days to give the consumer the requested information from the preceding 12 months with no charge to the consumer.
Who Must Comply with the Act
The Act will apply to for-profit businesses that do business in the State of California, deal with personal information of California residents, and either·(1) have more than $25 million in annual gross revenues, or (2) receive or disclose more than 50,000 California residents' personal information, or(3) derive 50% or greater of California residents' annual revenues from selling their personal information.
Who is Exempted from Compliance with the Act
A for-profit company, a small company, and/or a company that does not derive large amounts of personal information and does not share a brand with an affiliate covered by the Act is exempted from complying with the Act. Additionally, a company is exempted from compliance with the Act "if every aspect of . . . commercial conduct takes place wholly outside of California," meaning: (1) the personal information was collected from the consumer while they were outside California, (2) no sale of their personal information took place in California, and (3) there was no sale of personal information that was collected while the consumer was in California.
Impact
According to 2017 estimates, California's population totaled approximately 39 million people. Clearly the Act will affect an incredibly large amount of people considering it concerns the most populous state in America. The California Consumer Privacy Act of 2018, which is being compared to the EU General Data Protection Regulation for its all-encompassing method and resilient privacy protections is also speculated to have an impact on businesses throughout the nation and around the world. While the costs will likely go up for companies to do business in California, the transparency and trust earned by business and gained by consumers in this new landscape could potential overcome the initial costs to provide these required services. Perhaps most importantly however, is if California consumers decide to take advantage of the new protections, they will no longer have to wonder what for-profit businesses are doing with their data.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
David A. Napper and
Lana Halavi
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Mind Over Matter: Court Finds Expert Opinion Based on NFPA 921 Reliable Despite Absence of Physical Testing
September 12, 2022 —
Gus Sara - The Subrogation StrategistIn Smith v. Spectrum Brands, Inc., 2022 U.S. Dist. LEXIS 142262, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiffs’ liability expert met the requirements of Rule 702 of the Federal Rules of Evidence and could testify that a filter pump for an aquarium tank was defectively designed and caused a fire at the plaintiffs’ home. The defendant filed a motion to exclude the plaintiffs’ liability expert on grounds that the expert’s opinion did not satisfy the reliability element of Rule 702 because the expert never conducted physical testing on the filter pump. The court found that the cognitive testing employed by the expert through various methods, including visual inspections of the evidence, a review of photographs of the scene and literature from the manufacturer, and research on similar products, was sufficiently reliable to admit his opinion.
The Smith case involved a civil action brought by Jeanette Scicchitano Smith and Alexander Smith that arose from a 2019 fire at their residence in Lincoln University, Pennsylvania. The fire purportedly started in a filter pump, which was operating at the time of the fire, that the plaintiffs purchased in 2002 as part of an aquarium tank kit.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
