Category Archives: Other

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9th Circuit Preliminarily Enjoins Homebuilder From Using Copyrighted Drawings In Second Phase of A Development

By Robert T. Sturgeon In LGS Architects, Inc. v. Concordia Homes Of Nevada, 9th Circuit (January 11, 2006), the 9th Circuit reversed the district court’s denial of a motion for preliminary injunction. LGS, an architecture firm, had provided four copyrighted plans for Concordia’s construction of a development known as Arbor Glens I. LGS and Concordia … Continue Reading

California Supreme Court Holds Landowner May Be Liable For Injuries To Independent Contractor’s Employee When Landowner Fails To Warn Contractor Of Concealed Hazard

Kinsman v. Unocal Corp. 36 Cal. Rptr. 3d 495 (Dec. 19, 2005) The state Supreme Court ruled that a landowner who hires an independent contractor may be liable for injuries to the contractor’s employees if the landowner knew or reasonably should have known of a concealed hazardous condition, and the condition could not reasonably have … Continue Reading

Court Of Appeal Holds General Contractor Is Not Entitled To Indemnity From Subcontractors Under General Indemnity Clause Because General Contractor Was Actively Negligent

McCrary Construction Company v. Metal Deck Specialists, Inc., California Court of Appeal, First Appellate District, November 14, 2004 By Robert T. Sturgeon In McCrary, a general contractor sought indemnity from two of its subcontractors for damages arising from the death of a construction worker who fell through a hole in the metal roof of the … Continue Reading

Court Of Appeal Vacates $3 Million Arbitration Award Because Arbitrator Failed To Make Timely Disclosures

Ovitz v. Shulman California Court of Appeal, Fourth District. Decided October 26, 2005 By Robert T. Sturgeon The California Court of Appeal has vacated an arbitration award of over $3 million in damages and attorney’s fees on the grounds that the arbitrator failed to disclose that he would entertain offers to serve as an arbitrator … Continue Reading

California Supreme Court Clarifies That A Contractor Cannot Recover Any Compensation For Work Performed That Requires A Contractor’s License Unless The Contractor Was Licensed At All Times During The Performance Of The Work

MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co., 30 Cal. Rptr. 3d 755 (2005) By Robert T. Sturgeon The California Supreme Court has clarified the rules under California Business & Professions Code section 7031 regarding an unlicensed contractor’s ability to recover compensation for performance of work which requires a contractor’s license.… Continue Reading

Criminal Penalties For Violating OSHA Standards

By Candace L. Matson and Kevin M. Rivera Safety is important to all of us, but did you know you could be subject to criminal penalties, as well as civil penalties, for violating standards set by the California Occupational Safety and Health Administration (OSHA)? These penalties include prison sentences of up to four years and … Continue Reading

Federal Circuit Court Rejects Claim That Contractor Violated The False Claims Act By Allegedly Submitting A Fraudulently Low Bid With The Intent Of Later Making Up For The Loss By Submitting Change Orders For Extra Work

United States ex. rel. Bettis v. Odebrecht Contractors of California, Inc. 393 F.3d 1321 (D.C. Cir. 2005) By Robert T. Sturgeon A contractor entered into a contract with the Army Corp of Engineers for construction of the Seven Oaks Dam in San Bernardino County, California. The plaintiff was an alleged “whistleblower” who worked for one … Continue Reading

California Court of Appeal Upholds Dismissal of Claims Based on Overbroad Prop 65 Notices

In Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America, et al., 129 Cal. App. 4th 540 (2005), the California Court of Appeal (2nd District) reviewed and rejected as invalid certain notices served by plaintiff Consumer Advocacy Group (CAG) on numerous hotels and retail establishments under Proposition 65. The court accordingly upheld the trial court’s … Continue Reading

Mediation

Rojas v. Superior Court (Coffin) 33 Cal. 4th 407(Jul. 12, 2004) Owner of an apartment complex mediated and settled a dispute with the general contractor who built the complex. Subsequently, tenants in the complex sued owner and contractor for damages caused by construction defects. The tenants moved to compel discovery of the mediation files from … Continue Reading

Arbitration

Azteca Construction, Inc. v. ADR Consulting, Inc. 121 Cal. App. 4th 1156 (3d Dist. Aug. 25, 2004) A dispute arose out of a written contract pursuant to which ADR had agreed to provide consulting services to Azteca. The contract required the dispute to be resolved through the American Arbitration Association. In compliance with Code of … Continue Reading

Construction Defects and Claims

BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. 119 Cal. App. 4th 848 (4th Dist. Jun. 21, 2004) A school district contracted with an architect for construction of a high school and contracted with two general contractors for the same project. The District filed claims for breach of contract and professional negligence against the architect, … Continue Reading

Civil Procedure

Arntz Builders v. Superior Court (County of Contra Costa) 122 Cal. App. 4th 1195 (1st Dist. Sep. 30, 2004) Provision in construction contract between Arntz and County purportedly waiving the change of venue provisions of Code of Civil Procedure Section 394 (providing that any party may move for a change of venue where a county … Continue Reading

Judicial Reference

Greenbriar Homes Communities, Inc. v. Superior Court(Couris) 117 Cal. App. 4th 337 (3d Dist. Mar. 8, 2004) Homeowners brought claims against petitioner to recover for damages allegedly caused by petitioner’s defective construction. Homeowners included original purchasers (those who had bought their homes from petitioner) and non-original purchasers who were not in privity of contract with … Continue Reading

Safety/ Personal Injury

Bell v. Greg Agee Construction, Inc. 125 Cal. App. 4th 453 (4th Dist. Dec. 29, 2004) General contractor which did not affirmatively contribute to injury of subcontractor’s employee was not subject to liability under peculiar risk doctrine for employee’s injury even though subcontractor lacked workers’ compensation insurance at the time of the injury. Because subcontractor’s … Continue Reading

Transit Projects

Senate Bill No. 1130 (Scott) – approved by the Governor on July 27, 2004 Amends sections 20209.12, 20209.13, and 20209.14 of the Public Contract Code to extend by two years the “sunset date” on legislation authorizing design-build authority for transit districts. The provisions of this bill apply only to “transit projects” which do not include … Continue Reading

False Claims

United States, Ex Rel. Ali v. Daniel, Mann, Johnson, & Mendenhall 355 F.3d 1140 (9th Cir. 2004) Construction management firm employed by university to coordinate reconstruction of buildings damaged by the January 1994 Northridge earthquake was not immune from suit for false claims submitted to the Federal Emergency Management Agency. The management firm was a … Continue Reading

Building Standards

Plastic Pipe and Fittings Association v. California Building Standards Commission 124 Cal. App. 4th 1390 (2d Dist. Dec. 15, 2004) State agencies, in exercising discretion under California Building Standards law to disallow use of cross-linked polyethylene (PEX) pipes, were entitled to rely on expert environmental consultant’s opinion letter advising that PEX may present an unreasonable … Continue Reading

Bids/Bid Protests

Diede Construction, Inc. v. Monterey Mechanical Co. 125 Cal. App. 4th 380 (1st Dist. Dec. 28, 2004) General contractor bidding on a public works project to remodel a city hall learned, after the bids were opened but before general contractor executed a contract with the city, that the proposal submitted by its HVAC subcontractor contained … Continue Reading

Mechanics’ Liens/ Stop Notices

Liens and Waivers D’Orsay International Partners v. Superior Court (Jeffrey C. Stone, Inc.) 123 Cal. App. 4th 836 (2d Dist. Oct. 29, 2004) Where general contractor provided design and planning services for a construction project, but no actual visible work was commenced at the project and no materials were delivered to the site, owner was … Continue Reading

Licensing

Handyman Connection of Sacramento, Inc. v. Sands 123 Cal. App. 4th 867 (3d Dist Oct. 29, 2004) Plaintiff contractor appealed trial court judgment affirming Contractors’ State License Board decision that plaintiff violated four aspects of Contractors’ State License Law related to solicitation and obtaining of a contract to perform home improvement work. The Court of … Continue Reading

Suretyship

Travelers Casualty and Surety Company v. Amoroso 2004 WL 1918890 (N.D. Cal. Aug. 24, 2004) Contractor claimed that surety, in its capacity as surety, had verbally promised that it would use $3 million paid to it by contractor to pay contractor’s subcontractors, suppliers, and overhead expenses and to issue stop notice release bonds so contractor … Continue Reading

Insurance

Fire Insurance Exchange v. Superior Court (Altman) 116 Cal. App. 4th 446 (2d Dist. Mar. 2, 2004) A group of homeowners whose homes were damaged in the 1994 Northridge earthquake brought claims against their insurance companies to recover under their policies and for damages, alleging breach of contract, insurance bad faith, fraud and negligence. The … Continue Reading

Real Estate/ Land Use/ Environmental Overview

With one of the largest and most diverse real estate and development practices in California, Sheppard Mullin represents developers, builders, major landowners, lenders and local agencies on every aspect of development. Our range of expertise and practical experience includes: Site evaluation and acquisition Entity formation, including equity and debt financing Environmental and regulatory due diligence … Continue Reading
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