1
Share, But Be Aware: Growing Up with the Sharing Economy
2
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
3
California Court Of Appeal Limits The Application Of Howell In Cases Involving Medical Finance Companies – Moore v. Mercer (2016) 4 Cal.App.5th 424
4
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
5
Federal And State Courts Of Appeal Offer Further Guidance On Discriminatory Versus Legitimate Non-Discriminatory Business Decisions And The Weight Of The “Knowledge” Factor
6
CGL Exclusions Common to Construction-Related Claims
7
California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment
8
California Court Of Appeal Holds Plaintiff’s Rejection Of Settlement Requiring Waiver Of Claims Is Reasonable In Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462
9
Ninth Circuit Requires Increased Disclosures Related To The Sale Of “Certified” Pre-Owned Vehicles In Gonzales v. Carmax Auto Superstores, LLC (2016) 840 F.3d 644
10
UPDATE – McMillin Albany LLC v. Superior Court

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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California’s Court Of Appeal Confirms That Comparative Fault Applies To Professional Malpractice Claims And That Pre-Judgment Interest Is Not Recoverable Where Issues Exist On Fault And Apportionment

By: Ashley H. Verdon
May 25, 2017

In Yale v. Bowne (2017) 9 Cal.App.5th 649, Yale sued her former attorney for negligence in the preparation of an estate plan which, contrary to Yale’s wishes, transmuted all of her separate property to community property, and ultimately forced her to enter into an unfavorable settlement with her ex-husband so that Yale could avoid potentially losing half of everything in her divorce.  In the negligence case, the jury found that Yale’s attorney was professionally negligent and that Yale was comparatively negligent, allocating 90% fault to her attorney and 10% fault to Yale.

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California Court Of Appeal Holds Plaintiff’s Rejection Of Settlement Requiring Waiver Of Claims Is Reasonable In Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462

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

In Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, the Fourth District California Court of Appeal held that a plaintiff’s rejection of a pre-litigation offer including extraneous non-financial terms is reasonable and therefore does not preclude the plaintiff from recovering attorneys’ fees under California’s Song-Beverly Consumer Warranty Act (California Civil Code §§1790 et seq.) upon prevailing in the action.

Prior to initiating litigation in Goglin, the plaintiff notified BMW of her claims, asserting the dealer violated the Consumer’s Legal Remedies Act (“CLRA”) by selling her a used vehicle with undisclosed prior collision damage and an extensive history of mechanical failure. To resolve the issue, BMW offered to repurchase the vehicle, pay off her loan, and reimburse her for the down payment and loan payments made less an offset for depreciation and reimburse her for reasonable attorneys’ fees. The offer was contingent upon the plaintiff signing a settlement and release agreement including terms for a general release, waiver of California Civil Code §1542, dismissal with prejudice of any lawsuit she may have filed against BMW, and a confidentiality and nondisparagement clause.

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Ninth Circuit Requires Increased Disclosures Related To The Sale Of “Certified” Pre-Owned Vehicles In Gonzales v. Carmax Auto Superstores, LLC (2016) 840 F.3d 644

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

In Gonzales v. CarMax Auto Superstores, LLC (2016) 840 F.3d 644, the Ninth Circuit Court of Appeals held that to comply with California’s Car Buyer’s Bill of Rights, Unfair Competition Law (“UCL”), and Consumer’s Legal Remedies Act (“CLRA”), a dealer selling a “certified” pre-owed vehicle must indicate the pass/fail result of each component inspected, not simply provide the buyer with a completed inspection form listing which parts were inspected.

In Gonzales, the plaintiff brought suit claiming violations of the UCL and CLRA after purchasing a “certified” used vehicle from CarMax, and alleging that the deal failed to comply with California Vehicle Code §11713.18(a)(6), which requires a dealer to provide consumers with a “completed inspection report” prior to the sale of a “certified” used vehicle.

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UPDATE – McMillin Albany LLC v. Superior Court

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

The matter has been fully briefed since last year and the construction industry anxiously awaits the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132.  Numerous amicus briefs have also been 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.  The Supreme Court will consider the issue of whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003, thereby resolving the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany, which outright rejected the Fourth Appellate District’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, on this particular issue.  Oral argument is still pending and CGDRB will continue to closely monitor the progress of this case.  Stay tuned.

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