Category - Construction

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IMPORTANT ALERT: New California “Construction” Legislation
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FLASH BULLETIN – McMillin Albany LLC et al. v. Superior Court (2018) S229762
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UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart
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California Legislative Alert
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The New EPA Underground Storage Tank Regulations: A Compliance Primer
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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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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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CGL Exclusions Common to Construction-Related Claims
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UPDATE – McMillin Albany LLC v. Superior Court
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$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation

IMPORTANT ALERT: New California “Construction” Legislation

By: Richard H. Glucksman, Esq. and Chelsea L. Zwart, Esq.
October 2, 2018

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Governor Jerry Brown signed two potentially impactful Senate Bills relating to the construction of apartment buildings late last month.  These Bills, discussed further below, were introduced, in part, in response to the Berkeley balcony collapse in June 2015, which was determined by the California Contractors State License Board to be caused by the failure of severely rotted structural support joists the repair of which were deferred by the property manager, despite indications of water damage. 

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FLASH BULLETIN – McMillin Albany LLC et al. v. Superior Court (2018) S229762

By: Richard H. Glucksman, Glenn T. Barger, Jon A. Turigliatto, David A. Napper
February 15, 2018

HOT OFF THE PRESS:

THE CALIFORNIA SUPREME COURT HAS RULED THAT THE RIGHT TO REPAIR ACT (SB800) IS THE EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS NOT INVOLVING PERSONAL INJURIES WHETHER OR NOT THE UNDERLYING DEFECTS GAVE RISE TO ANY PROPERTY DAMAGE in McMillin Albany LLC et al. v. Superior Court (2018) S229762.

The Construction Industry finally has its answer.  The California Supreme Court ruled that the Right to Repair Act (SB800) is the exclusive remedy for construction defect claims alleged to have resulted from economic loss, property damage, or both.  Our office has closely tracked the matter since its infancy.  The California Supreme Court’s holding resolves the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, 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.

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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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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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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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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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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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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.

$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation

By: Jon A. Turigliatto and Chelsea L. Zwart
May 25, 2017

The Fourth District California Court of Appeal published its decision, Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, holding that claims against a material supplier under SB800 (Civil Code §895, et. seq.) require proof that the SB800 violation was caused by the supplier’s negligence or breach of contract.

In this case, Acqua Vista Homeowners Association (“the HOA”) sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development.  The HOA’s complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building.  At trial, the HOA presented evidence that the pipes supplied by MWI contained manufacturing defects, that they leaked, and that the leaks had caused damage to various parts of the condominium development.  The jury returned a special verdict against MWI, and the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury’s finding that MWI was 92% responsible for the HOA’s damages.

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