Measures Landlords and Property Managers Can Take in Response to a Reported COVID-19 Infection
May 18, 2020 —
Kyle Janecek & Jason Morris - Newmeyer DillionMost landlords and property managers are now familiar with steps they should be taking to reduce the spread of COVID-19. But what if a tenant or employee has tested positive with COVID-19? Unfortunately, many landlords and property managers are grappling with this very question. While there’s some clarity as it pertains to evictions in the landlord-tenant context, other considerations like disinfection, required notices, and maintenance, are evolving or unclear. Here are steps landlords and property managers can take in response to an employee or tenant testing positive with COVID-19.
Measures Landlords Can Take for Employees
For workplaces, there is a large variety of guidelines and procedures that are generally available to review. The Centers for Disease Control and Prevention (CDC) has valuable guidance available online here and here. The Occupational and Safety Health Administration (OSHA) has valuable guidance available online here. In short, if there is an incident where one employee may have exposed others to COVID-19, here are five steps employers should take:
- Send the affected employee home and instruct them not to return to work until the criteria to discontinue home isolation are met in consultation with healthcare providers, and state and local health departments. Make sure to maintain all information about employee illnesses as a confidential medical record.
- Ask the affected employee whether they have had close contact with any other workers.
Reprinted courtesy of
J. Kyle Janecek, Newmeyer Dillion and
Jason L. Morris, Newmeyer Dillion
Mr. Janecek may be contacted at kyle.janecek@ndlf.com
Mr. Morris may be contacted at jason.morris@ndlf.com
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Land Planners Not Held to Professional Standard of Care
October 10, 2013 —
Heather Anderson — Higgins, Hopkins, McLain & Roswell, LLC.Recently, the Colorado Court of Appeals indicated that there is no professional duty of care applicable to land planners. See Stan Clauson Associates, Inc. v. Coleman Brothers Constr., LLC, 297 P.3d 1042 (Colo. App. 2013). Stan Clauson Associates, Inc. (“SCA”) agreed to provide land planning services to Coleman Brothers Construction, LLC (“Coleman”) for property referred to as Crown Mountain in a letter and then verbally agreed to provide a development analysis for another property, located on Emma Road in Basalt, Colorado. Thereafter, SCA sent letters to the defendant concerning the possible subdivision and development of the Emma Road property.
Approximately two years later, SCA sued Coleman for breach of the verbal agreement concerning the Emma Road property. Coleman then asserted counterclaims against SCA for negligently providing inaccurate advice about whether the Emma Road property could be subdivided and developed, and that the county had denied the planned unit development sketch plan SCA prepared and submitted on behalf of Coleman. The district court granted SCA’s motion for summary judgment thereby concluding that the economic loss rule barred Coleman’s negligence counterclaims. The Court of Appeals agreed.
In its opinion, the Court of Appeals reiterated the economic loss rule espoused in the Colorado Supreme Court in the Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000) case. “Under the economic loss rule, ‘a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.’”
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Heather AndersonHeather Anderson can be contacted at
anderson@hhmrlaw.com
Court of Appeal Shines Light on Collusive Settlement Agreements
October 21, 2015 —
Kristian B. Moriarty & R. Bryan Martin – Haight Brown & Bonesteel LLPIn Diamond v. Reshko, (filed 8/20/2015, No. A139251) the California Court of Appeal, First District, held that a defendant was entitled to introduce evidence at trial reflecting amounts paid by co-defendants in settlement of a plaintiff’s claim.
Plaintiff, Christine Diamond, was injured during an automobile accident that occurred while she was a passenger in a taxi driven by Amir Mansouri. Christine, and her husband Andrew, filed suit against Mr. Mansouri, the Yellow Cab Collective (“Yellow Cab”), and the driver of the vehicle that collided with the taxi, Serge Reshko. Before trial, Mansouri and the Yellow Cab Collective settled with Plaintiffs, but agreed to appear and participate as defendants at the jury trial of the action. Mansouri and Yellow Cab paid a total of $400,000 to Plaintiffs in settlement.
Reshko filed a pre-trial motion seeking an order permitting Reshko to admit evidence of the settlement between Plaintiffs and the other defendants. The trial court refused to rule on the motion before trial. Ultimately, evidence of the settlement between Plaintiffs, Mansouri and Yellow Cab was excluded during trial. The jury returned a verdict in favor of Plaintiffs in the total amount of $745,778, finding Mansouri 40 percent at fault, and Reshko 60 percent at fault. The Trial Court entered judgment against Reshko in the sum of $406,698.
Reshko appealed the judgment. The First District Court of Appeal reversed, holding that evidence of the settlement should have been admitted at trial because the settling defendant’s position should be revealed to the court and jury to avoid committing a fraud on the court, and in order to permit the trier of fact to properly weigh the settling defendant’s testimony.
Reprinted courtesy of
Kristian B. Moriarty, Haight Brown & Bonesteel LLP and
R. Bryan Martin, Haight Brown & Bonesteel LLP
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
Mr. Martin may be contacted at bmartin@hbblaw.com
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SB 939 Proposes Moratorium On Unlawful Detainer Actions For Commercial Tenants And Allows Tenants Who Can't Renegotiate Their Lease In Good Faith To Terminate Their Lease Without Liability
June 01, 2020 —
Rhonda Kreger – Newmeyer DillionSB 939 is currently working its way through the Senate Judiciary Committee. The legislation would impose new obligations on landlords, and provide protections for commercial tenants who meet specified criteria. SB 939 would impose a moratorium on eviction of those qualified commercial tenants while emergency COVID-19 orders are in effect. Any eviction actions commenced after the date of the emergency COVID-19 order, but before the adoption of SB 939, would be void and unenforceable. The Senate Judiciary Committee has scheduled a hearing for SB 939 on May 22, 2020, at 9:00 a.m.
Who qualifies as a commercial tenant under SB 939?
To qualify under this legislation, a commercial tenant must be a business that operates primarily in California. The commercial tenant must be a small business, nonprofit, an eating or drinking establishment, place of entertainment, or performance venue. Publicly traded companies or any company owned by, or affiliated with a publicly traded company, do not qualify. The commercial tenant must have experienced a decline of at least 40 percent monthly revenue, either as compared to two months before the emergency COVID-19 order, or other local government shelter-in-place orders took effect, or as compared to the same month in 2019. If the commercial tenant is an eating or drinking establishment, place of entertainment, or performance venue, the commercial tenant must also show a decline of 25 percent or more in capacity due to social or physical distancing orders or safety concerns, and show that it is subject to regulations to prevent the spread of COVID-19 that will financially impair the business when compared to the period before the emergency COVID-19 order or other local shelter-in-place orders took effect.
What eviction actions are prohibited while emergency COVID-19 orders are in effect?
If adopted, SB 939 would add Section 1951.9 to the Civil Code. This section would make it unlawful to terminate a tenancy, serve notice to terminate a tenancy, use lockout or utility shutoff actions to terminate a tenancy or otherwise evict a tenant of commercial real property, including a business or nonprofit, during the pendency of the COVID-19 emergency order proclaimed by Governor Newsome on March 4, 2020. Exceptions apply if a tenant poses a threat to the property, other tenants or a person, business or other entity. Any violations of this eviction prohibition would be against public policy and unenforceable.
Any eviction started after proclamation of the state of emergency but before the effective date is deemed void, against public policy and is unenforceable.
Does SB 939 impose new penalties or remedies?
Any landlord who harasses, mistreats or retaliates against a commercial tenant to force the tenant to abrogate the lease would be subject to a fine of $2,000 for each violation. Further, any such violation would be an unlawful business practice and an act of unfair competition under Section 17200 of the Business and Professions Code and would be subject to all available remedies or penalties for those actions under state law.
When is a commercial tenant required to pay unpaid rent due to COVID-19?
If a commercial tenant fails to pay rent during the emergency COVID-19 order, the sum total of the past due rent must be paid within 12 months following the date of the end of the emergency proclamation, unless the commercial tenant has successfully negotiated an agreement with its landlord to pay the outstanding rent at a later date. Nonpayment of rent during the state of emergency cannot be used as grounds for eviction. Notwithstanding lease terms to the contrary, landlords may not impose late charges for rent that became due during the state of emergency.
Are landlords required to provide notice of protections adopted under SB 939?
Landlords would be required to provide notice to commercial tenants of the protections offered under SB 939 within 30 days of the effective date. SB 939 does not preempt local legislation or ordinances restricting the same or similar conduct which impose a more severe penalty for the same conduct. Local legislation or ordinances may impose additional notice requirements.
Does SB 939 impose new protections for commercial tenants when negotiating lease modifications?
If enacted, SB 939 would permit commercial tenants to open negotiations for new lease terms, and provide commercial tenants the ability to terminate the lease if those negotiations fail. A commercial tenant who wishes to modify its commercial lease, may engage in good faith negotiations with its landlord to modify any rent or economic requirement regardless of the term remaining on the lease. The commercial tenant must serve a notice on the landlord certifying that it meets the required criteria, along with the desired modifications.
If the commercial tenant and landlord do not reach a mutually satisfactory agreement within 30 days, then within 10 days, the commercial tenant may terminate the lease without any liability for future rent, fees, or costs that otherwise may have been due under the lease by providing a written termination notice to the landlord. The commercial tenant would be required to pay previously due rent, in an amount no greater than the sum of the following: (1) the actual rent due during the emergency COVID-19 order, or a maximum of three months of the past due rent during that period, and (2) all rent incurred and unpaid during a time unrelated to the emergency COVID-19 order through the date of the termination notice. The payment is due within 12 months from date of the termination notice. The commercial tenant would be required to vacate the premises within 14 days of the landlord's receipt of the termination notice. Upon service of the notice, any lease, and any third party guaranties of the lease would terminate. If the landlord and commercial tenant reach an agreement to modify the lease, the commercial tenant would not have the option to later terminate the lease under this provision.
When is the next Senate Judiciary Committee Meeting for SB 939?
The Senate Judiciary Committee set a hearing for SB 939 on May 22, 2020 at 9:00 a.m. The Senate will livestream the hearing on its website at www.sen.ca.gov. Public comments or testimony may be submitted in writing to the Judiciary Committee by emailing Erica.porter@sen.ca.gov. Alternatively, the public may participate via telephone during the public comment period. Any changes to the Judicial Committee schedule may be found at: https://www.senate.ca.gov/calendar.
Newmeyer Dillion continues to follow COVID-19 and its impact on your business and our communities. Feel free to reach out to us at NDcovid19response@ndlf.com or visit us at www.newmeyerdillion.com/covid-19-multidisciplinary-task-force/.
Rhonda Kreger is Senior Counsel on Newmeyer Dillion's transactional team at our Newport Beach office. Her practice focuses on all aspects of commercial real estate law, with a particular emphasis on the representation of residential developers, merchant builders and institutional investors. You can reach Rhonda at rhonda.kreger@ndlf.com.
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Chambers USA 2021 Recognizes Five Partners and Two Practices at Lewis Brisbois
June 07, 2021 —
Lewis BrisboisFive Lewis Brisbois partners and two Lewis Brisbois practices were recently ranked by Chambers in its 2021 USA rankings list.
Kansas City and Wichita Managing Partner Alan L. Rupe and Phoenix Managing Partner Carl F. Mariano were both ranked Band 1 for “Labor & Employment – Kansas” and “Insurance – Arizona,” respectively, while Minneapolis Partner Tina A. Syring was ranked Band 4 for “Labor & Employment – Minnesota,” and Washington D.C. Managing Partner Jane C. Luxton and Partner Karen C. Bennett were ranked Band 5 for “Environment – District of Columbia.”
Significantly, Chambers also ranked Lewis Brisbois’ Kansas Labor & Employment Practice Band 2 and the firm’s Washington D.C. Environmental Practice Band 4.
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Lewis Brisbois
Bank Sues over Defective Windows
July 31, 2013 —
CDJ STAFFThe Federal Reserve Bank of St. Louis replaced 498 windows in its building in 2008. According to a consultant, they all have to be replaced again. The bank estimates that the damages will exceed $1.5 million, and they are suing the contractor who installed them, the window manufacturer, and others.
The windows were replaced to provide greater blast protection. But in 2011, the bank found that the special glass used was beginning to delaminate. The Federal Reserve is seeking to have all of the windows replaced “with windows that meet the specifications of the contract.”
McCarthy Building Construction says that it is attempting to resolve things. The contractor noted that it is “continuing to work with the Federal Reserve and other parties and hope we can resolve this matter in a timely manner.”
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French Government Fines National Architects' Group $1.6M Over Fee-Fixing
December 09, 2019 —
Debra K. Rubin - Engineering News-RecordThe French government’s anti-trust agency has fined the national architects’ registration group and four regional councils $1.64 million (€1.5 million) for price-fixing design fees on public works.
Reprinted courtesy of
Debra K. Rubin, Engineering News-Record
Ms. Rubin may be contacted at rubind@enr.com
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Don MacGregor of Bert L. Howe & Associates Awarded Silver Star Award at WCC Construction Defect Seminar
May 24, 2018 —
CDJ STAFFThe staff of the Construction Defect Journal would like to extend their congratulations to Don MacGregor of Bert L. Howe & Associates, Inc., in recognition of his receipt of the Silver Star Award as “Best Expert” at the 25th Anniversary of the West Coast Casualty Construction Defect Seminar, hosted at the Disneyland Resort Hotel, in Anaheim CA.
Recipients of the Silver Star Awards were nominated and voted on by their peers, colleagues, and the Construction Defect Community at large, as represented by the 25,000 members who received emails on the subject.
Along with “Best Expert,” recognition was also given to the best judge, mediator, plaintiff attorney, developer attorney, subcontractor attorney, coverage counsel, and insurance claims professional. Awards were handed out last Thursday during a special ceremony at this year’s Seminar.
To Don, and all the worthy awardees, congratulations again!
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