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UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart
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Is a Non-Party’s Contact Information Private?
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California Legislative Alert
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The New EPA Underground Storage Tank Regulations: A Compliance Primer
5
Share, But Be Aware: Growing Up with the Sharing Economy
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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again That The Right To Repair Act Is The Exclusive Remedy For Construction Defect Claims
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California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424
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Builder Must Respond To Homeowner’s Notice Of Claim Within 14 Days Even If Construction Defect Claim Is Not Alleged With The “Reasonable Detail” Required By California’s Civil Code – Blanchette v. Superior Court (2017) 8 Cal.App.5th 521
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Federal And State Courts Of Appeal Offer Further Guidance On Discriminatory Versus Legitimate Non-Discriminatory Business Decisions And The Weight Of The “Knowledge” Factor
10
CGL Exclusions Common to Construction-Related Claims

UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart

By: Richard H. Glucksman, Glenn T. Barger, David A. Napper, and Chelsea L. Zwart
October 25, 2017

The matter has been fully briefed since 2016 and the construction industry has been anxiously awaiting the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132. At long last, oral argument has finally been set for Tuesday, November 7, 2017 at 1:30 p.m. in Sacramento. Numerous amicus briefs were filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB’s Glenn T. Barger, Esq., listed as the attorney of record, Mr. Barger will personally appear and represent the ASCDC at oral argument.

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Is a Non-Party’s Contact Information Private?

When a class action litigant seeks to discover contact information for a third party—often with respect to potential class members—privacy considerations come into play.

By: Craig A. Roeb, Esq. and Lauren S. Kadish, Esq.
September 14, 2017

Link To Article

Wage and hour class action litigation frequently involves lengthy and expensive battles over the proper scope of pre-class certification discovery.  The extent of unnamed potential class members’ right to privacy is a constant debate between litigants.  Early in the case, a plaintiff will propound discovery requesting contact information, timesheets, payroll history, for every putative class member company-wide or state-wide, even though the named plaintiff has no evidence or knowledge of unlawful practices beyond the particular location where he or she works.  In an effort to protect its employees’ right to privacy, defendants will often object to these requests on the grounds that such discovery is burdensome and invades privacy rights of non-party employees.

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California Legislative Alert

By: Richard H. Glucksman, Esq. and Chelsea L. Zwart, Esq.
August 4, 2017

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AB 1701 recently passed the Assembly and is pending in the Senate’s Labor and Industrial Relations and Judiciary Committees. The Bill, if signed by the Governor, would create a new section in the California Labor Code (Section 218.7) making “direct contractors” – defined as a contractor “making or taking a contract in the state for the erection, construction, alteration, or repair of a building, structure, or other private work” – liable for wages a subcontractor or sub-subcontractor fails to pay to its employee for work included in the general contractor’s contract with the project owner.

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The New EPA Underground Storage Tank Regulations: A Compliance Primer

By: Richard Glucksman, Esq. and Ravi Mehta, Esq.
July 20, 2017

Published by AmWINS – Download Article

Background

Underground storage tanks (“USTs”) have long been used in a wide variety of residential, commercial, and industrial applications. UST regulations are intended to safeguard public health and safety, as well as reduce the economic impacts of a UST system failure. Most obviously, leaks in UST systems have the potential to contaminate the natural environment, and groundwater in particular, which is a significant source of drinking water.1  Additionally, UST regulations are designed to prevent damage, injury or death by combustion of stored material.

Congress began legislating the regulation of UST systems in 1984, and has since developed increasingly more comprehensive and robust regulations, with the most recent iteration established in 2015. These developments represent responses to advances in preventative technology, including leak detection and secondary containment, as well as changes in the substances being stored in UST systems. Further, congressional action on UST systems has been underscored by the goal of creating a more uniform set of regulations among state and local governments, as well as on tribal lands.2

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Share, But Be Aware: Growing Up with the Sharing Economy

By: Richard H. Glucksman, Esq. and Chelsea L. Zwart, Esq. in collaboration with Bob Wright, property broker with AmWINS Insurance Brokerage of California in San Francisco.
June 20, 2017

Published by AmWINS – Download Article

Most, if not all of us remember being told, “Don’t talk to strangers,” while we were growing up. In today’s economy, that rule has become a distant memory. In the sharing economy, millions of people daily rely entirely on strangers to provide services and goods to them through various online platforms.

For example, a visitor to a metropolitan city can rent a stranger’s house through Airbnb, be driven around the city by an Uber driver or rent a fellow vacationer’s car through Getaround, have their laundry picked up at their door, washed, and returned within 24 hours by Rinse, and get their meals delivered by a GrubHub driver or have a stranger grocery shop for them through TaskRabbit, all while their dog is boarded at a stranger’s house instead of a kennel back home. Not to mention that the vacation was paid for by a peer-to-peer loan via LendingClub.1

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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again That The Right To Repair Act Is The Exclusive Remedy For Construction Defect Claims

By: Richard H. Glucksman, Esq. and Chelsea L. Zwart, Esq.
June 5, 2017

Background

In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017,  the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot.  The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.

After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor.  The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.

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California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424

By: Ashley H. Verdon and Katherine J. Flores
May 25, 2017

In a plaintiff friendly decision, the Third District California Court of Appeal held that an uninsured plaintiff may present evidence of the full billed amount for medical treatment where a healthcare provider has sold its accounts receivable and medical liens to a medical finance company.

In Moore v. Mercer, an uninsured plaintiff executed medical lien agreements with her doctors in order to obtain medical treatment following an automobile collision.  At trial, plaintiff filed a motion in limine to exclude evidence of the medical finance company’s involvement on the grounds that it was irrelevant and prejudicial.  The trial court granted the motion in limine under Evidence Code §352.  Defendant appealed.

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Builder Must Respond To Homeowner’s Notice Of Claim Within 14 Days Even If Construction Defect Claim Is Not Alleged With The “Reasonable Detail” Required By California’s Civil Code – Blanchette v. Superior Court (2017) 8 Cal.App.5th 521

By: Richard H. Glucksman and David A. Napper
May 25, 2017

On February 10, 2017, California’s Fourth District Court of Appeal held that if a builder fails to acknowledge receipt of a homeowner’s Notice of Claim within 14 days, as required by the Right to Repair Act (“SB800”), specifically California Civil Code §913, the homeowner is released from the requirements of SB800 and may proceed with the filing of a lawsuit.

In Blanchette v. Superior Court, Blanchette owned 1 of 28 homes constructed by GHA Enterprises, Inc. (“GHA”). On February 2, 2016, Blanchette served GHA with notice of a claim, setting forth the alleged defects in all 28 homes. On February 23, 2016, GHA responded that the construction defects were not alleged with sufficient “reasonable detail” as required by Civil Code §910. In response, Blanchette asserted that GHA’s response was untimely and thus excused him and the other homeowners from any obligations under SB800.  The trial court found for the builder, GHA, holding that Blanchette’s Notice of Claim lacked detail sufficient to trigger GHA’s obligations under SB800.  Blanchette appealed the ruling.

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Federal And State Courts Of Appeal Offer Further Guidance On Discriminatory Versus Legitimate Non-Discriminatory Business Decisions And The Weight Of The “Knowledge” Factor

By: Gregory K. Sabo and Chelsea L. Zwart
May 25, 2017

Mendoza v. The Roman Catholic Archbishop of Los Angeles (9th Cir. 2016) 824 F.3d 1148

In Mendoza v. The Roman Catholic Archbishop of Los Angeles (9th Cir. 2016) 824 F.3d 1148, the Ninth Circuit Court of Appeals held that an employer is not required to offer an employee the same position upon return from sick leave if the position was eliminated during the employee’s leave period for a legitimate non-discriminatory business reason.

In Mendoza, prior to taking sick leave for ten months, the plaintiff worked full-time as a bookkeeper for a small Catholic church.  During her absence, the pastor of the church took over the bookkeeping duties himself and determined that the duties could be performed adequately by a part-time bookkeeper.  Accordingly, when the plaintiff returned to work, the pastor offered her the same bookkeeping position she had held before her leave of absence, but on a part-time basis.  The plaintiff refused, demanding a full-time position.  She then sued her former employer, asserting claims under the Americans with Disabilities Act (“ADA”) for discrimination, disparate treatment, and failure to accommodate for failing to return her to a full-time position following her medical leave.

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CGL Exclusions Common to Construction-Related Claims

By: Dominic J. Fote
Published by AmWINS Group, Inc.

The Commercial General Liability policy (CGL) is an essential factor in the equation that consists of building planning, financing, construction, operation, and protection from risk. While its coverage potential is determined by claim professionals and insurance coverage counsel daily throughout the country, it is useful to step back and consider application examples of some of the standard form’s most prominent provisions. The following is a primer on three of the CGL form’s exclusions which most commonly come into play in the world of construction defect claims.

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