The Private Works: Preliminary Notice | Are You Using the Correct Form?
August 20, 2019 —
William L. Porter, Esq. - Porter Law GroupThe Private Works – Preliminary Notice form which contractors, subcontractors and suppliers had become accustomed to using for many years changed in 2004. Despite this change in law, many in the construction industry have still not started using the correct new form. Changes in the law, championed by the American Subcontractors’ Association, gave a significant new benefit to subcontractors and suppliers by giving the subcontractor or supplier some expectation of actually receiving notice of when a Notice of Completion or a Notice of Cessation has been recorded on many private works projects. The law also changed the language of the California Preliminary Notice that subcontractors and suppliers must use to protect their mechanics’ lien, bond claim and stop payment notice rights. If Owners do not send out the Notice of Completion as required by law they incur a diminishing of the protections afforded to them when they record a Notice of Completion or Notice of Cessation on many private works projects.
The revised law requires private project owners to notify all subcontractors and suppliers within 10 days after recording a Notice of Completion or Notice of Cessation that a Notice of Completion or a Notice of Cessation has actually been recorded. In order to receive such notice, the subcontractor or supplier must properly serve the new form of Preliminary Notice. If this properly occurs and the private project owner provides the required notice, then the subcontractor or supplier will have 30 days to record a Mechanics’ Lien. However, if an owner under such circumstances fails to properly notify a subcontractor or supplier within 10 days after recording a Notice of Completion or Notice of Cessation, then the Subcontractor or supplier will have 90 days to record a Mechanics’ Lien. The details of the law can be found in California Civil Code sections 8190, 8414 and 8416.
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William L. Porter, Esq., Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Amazon Feels the Heat From Hoverboard Fire Claims
January 20, 2020 —
William L. Doerler - The Subrogation StrategistIn State Farm Fire & Cas. Co. v. Amazon.com, Inc., No. 3:18CV166-M-P, 2019 U.S. Dist. LEXIS 189053 (Oct. 31, 2019), the United States District Court for the Northern District of Mississippi considered a Motion for Judgment on the Pleadings filed by defendant Amazon.com, Inc. (Amazon). Amazon argued that, because it was a “service provider” who cannot be held liable under Mississippi’s Product Liability Act (MPLA), Miss. Code § 11.1.63, the negligence and negligent failure to warn claims filed against it by plaintiff State Farm Fire & Casualty Company (State Farm) failed as a matter of law. The court, looking beyond the MPLA, held that State Farm’s complaint stated a claim against Amazon.
In State Farm, Taylor and Laurel Boone (the Boones), State Farm’s subrogors, purchased two hoverboards from third parties in transactions facilitated by Amazon. They purchased the first hoverboard on October 31, 2015 and the second on November 10, 2015. The Boones started using the hoverboards on or about December 25, 2015. On March 16, 2016, the hoverboards caught fire and the fire spread to destroy the Boones’ home. As alleged in the amended complaint, the hoverboards were “manufactured by unknown manufacturers from China.” State Farm, as the Boones’ subrogee, filed suit asserting negligence and negligent failure to warn claims against Amazon.
Amazon filed a Motion for Judgment on the Pleadings, arguing that State Farm’s claims against it were governed by the MPLA and, as a service provider, it was not liable under the MPLA. In response, State Farm argued that Amazon was liable because it acted as a “marketplace” and that, rather than MPLA claims, Amazon is subject to common law negligence and failure to warn claims. The District Court agreed with State Farm.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
President Trump Nullifies “Volks Rule” Regarding Occupational Safety and Health Administration (OSHA) Recordkeeping Requirements
April 13, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPOSHA requires employers to maintain safety records for a period of five years. The Occupational Safety and Health Act contains a six month statute of limitations for OSHA to issue citations to employers for violations. In an effort to close the gap between the five years employers are required to keep records and the six month citation window, the Obama Administration implemented the “Volks Rule,” making recordkeeping requirements a “continuing obligation” for employers and effectively extending the statute of limitations for violations of recordkeeping requirements from six months to five years.
On March 22, 2017, the Senate approved a House Joint Resolution (H.J. Res. 83) nullifying the “Volks Rule” and limiting the statute of limitations to six months for recordkeeping violations. President Trump signed the resolution nullifying the “Volks Rule” on April 3, 2017. The nullification appears to be in line with President Trump’s stated goal of generally eliminating governmental regulations.
What Does This Mean for California Employers?
California manages its own OSHA program, which generally follows the federal program, but is not always in lock-step with Federal OSHA. Cal/OSHA, under its current rules, may only cite employers for recordkeeping violations that occurred during the six months preceding an inspection or review of those records. To date, there has been no indication that California’s Division of Occupational Safety and Health (DOSH) has plans to adopt the “Volks Rule.” Barring a change, California employers will continue to operate under the status quo and be required to maintain safety records for five years, but will only be exposed to citations for recordkeeping violations occurring within the last six months.
Current Cal/OSHA Recordkeeping Requirements
Cal/OSHA form 300 (also known as the “OSHA Log 300”) is used to record information about every work-related death and most work-related injuries that cannot be treated with onsite first aid (specific requirements can be found in the California Code of Regulations, Title 8, Sections 14300 through 14300.48). Currently, California Code of Regulations, Title 8, Section 14300.33 requires employers to retain OSHA Log 300 for a period of five years following the end of the calendar year during which the record was created, despite the fact that Cal/OSHA can only cite employers for failing to maintain such records for up to six months preceding an inspection.
Looking to the Future
Cal/OSHA is working on regulations that would require electronic submission of OSHA Log 300 records in California. This would bring Cal/OSHA more in line with Federal OSHA, which already requires electronic submission.
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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Louis "Dutch" Schotemeyer, Newmeyer & Dillion LLPMr. Schotemeyer may be contacted at
dutch.schotemeyer@ndlf.com
Yellen Has Scant Power to Relieve U.S. Housing Slowdown
June 11, 2014 —
Rich Miller and Victoria Stilwell - BloombergThe hesitant housing recovery has surprised and concerned Federal Reserve Chair Janet Yellen and her colleagues at the central bank. It’s not clear how much they can do about it.
While the industry is rebounding from a weather-ravaged first quarter, the pickup will probably fall short of previous projections, according to economists at Goldman Sachs Group Inc. of New York and Macroeconomic Advisers LLC in St. Louis. As a result, they trimmed their forecasts for economic growth in the second half of 2014 to about 3.25 percent from 3.5 percent.
“Housing is a growing worry,” said Macroeconomic Advisers’ senior economist Ben Herzon.
Mr. Miller may be contacted at rmiller28@bloomberg.net; Ms. Stilwell may be contacted at vstilwell1@bloomberg.net
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Rich Miller and Victoria Stilwell, Bloomberg
Manhattan Condo Resale Prices Reach Record High
September 03, 2014 —
Oshrat Carmiel – BloombergPrices for previously owned Manhattan condominiums rose to a record last month even as an increase in the supply of units eased competition among buyers.
An index of resale prices climbed 1.1 percent from June to reach the highest level in data going back to 1995, StreetEasy.com, a New York real estate website, said in a report today. The inventory of condos on the market grew 5.4 percent from a year earlier, the biggest annual gain since October 2009.
The market is still tight, with the number of available condos about 16 percent below the five-year average for Manhattan. That will continue to drive up prices, according to StreetEasy, which projects a 0.4 percent increase for August.
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Oshrat Carmiel, BloombergMs. Carmiel may be contacted at
ocarmiel1@bloomberg.net
Things You Didn't Know About Your Homeowners Policy
July 02, 2014 —
Arthur Murray – BloombergThink you know everything about your home insurance policy? Is that because you understand the difference between dwelling coverage and personal liability protection? Because you know that floods aren’t covered by standard home insurance?
Think again. You might know more than most, but you probably don’t know everything about your policy — unless you’ve read the fine print and committed it to memory. And who’s got time for that? However you don’t want to find yourself stuck without coverage you thought you had. Here are some lesser known coverage nuances you likely weren’t aware of.
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Arthur Murray, Bloomberg
Massachusetts Roofer Killed in Nine-story Fall
January 08, 2019 —
Johanna Knapschaefer - Engineering News-RecordA 41-year-old roofer from Haverhill, Mass. fell through a roof hole nine stories to his death on Dec. 18 while working on an apartment building project in Haverhill, a city north of Boston.
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Johanna Knapschaefer, ENRENR may be contacted at
ENR.com@bnpmedia.com
Denial of Motion to Dissolve Lis Pendens Does Not Automatically Create Basis for Certiorari Relief
November 16, 2023 —
David Adelstein - Florida Construction Legal UpdatesA recent appellate decision out of Florida’s Sixth District Court of Appeal holds that a trial court’s denial of motion to dissolve a lis pendens does NOT automatically give a basis for a petition for a writ of certiorari. Generalized allegations of “irreparable harm” to support the basis for the petition for writ of certiorari are insufficient. Rather, the party moving for the petition MUST clearly demonstrate the irreparable harm; otherwise, the petition for writ of certiorari will fail.
A lis pendens has legal significance. It is a recorded document that notifies the world that there is a pending lawsuit dealing with the real property at issue. This is important because who wants to buy a piece of property that is subject to litigation – that would be a risky transaction!
In CPPB, LLC v. Taurus Apopka City Center, LLC, 48 Fla.L.Weekly D1837a (Fla. 6th DCA 2023), a dispute arose as to a real estate transaction. The owner sold a parcel to a buyer. The owner also owned three adjacent parcels. As part of the transaction, the buyer agreed to perform certain improvements to all of the parcels including those adjacent parcels owned by the owner. The owner deposited funds in escrow for purposes of its share of the improvements. A payment dispute arose regarding the improvements and the buyer sued the seller. The seller filed a counterclaim to rescind the transaction along with a recorded lis pendens on the parcel purchased by the buyer. The buyer moved to dissolve the lis pendens which the trial court denied. This prompted the appeal – a petition for a write of certiorari based on the trial court’s denial of the motion to dissolve the lis pendens.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
