Experience Archive

On October 9, 2011, California Governor Jerry Brown signed Senate Bill 474 into law, which significantly impacts commercial and public construction contracts in California.  SB 474 amended California Civil Code Sections 2782 and 2783 and, most notably, added Section 2782.05 to the California Civil Code.

Following the Arizona Supreme Court's ruling in Richards v Powercraft permitting subsequent purchasers to pursue implied warranty claims even in the absence of privity, Arizona courts have had a difficult time determining whether to categorize this creature of public policy as a tort or a contract claim.  

For years, plaintiffs and defendants have battled over the standards for admission of expert witness opinions in California courts. Defendants frequently argue that the opinions of plaintiffs' experts on issues ranging from damages to causation are speculative and lack an evidentiary foundation. Plantiffs respond that California trial judges do not play the same role as federal district judges, who are directed under the Daubert standard to act as gatekeepers, weighing the evidentiary basis of expert opinions before they are admitted in Court.

Last week, the California Court of Appeals handed down a huge victory for home builders.  In a case of first impression, the court affirmed the clear legislative intent and purpose of SB 800: providing a builder notice and the right to repair prior to a homeowner initiating construction defect litigation.

In legal malpractice cases governed by California Code Civ. Proc., § 340.6, actual injuries accrue – and the one year statute of limitations is not tolled – because plaintiffs' loss or diminution of a right or remedy is an "actual injury", caused in this case by an attorney's failure to timely recover a judgment.

In a landmark decision for the building and construction industry, the California Supreme Court handed down this morning a closely watched decision which addresses the hot issue of enforcement of arbitration clauses.  We are pleased for our developer clients who brought this appeal and proud of the impact this decision has for the entire building and construction industry.  Wood Smith Henning & Berman represented Pinnacle Market Development (US) LLC, Pinnacle International (US) LLC and Pinnacle Market Development (Canada), Ltd., in this litigation since its inception, initiating the underlying Motions to Compel Arbitration, drafted and argued the matter before the Court of Appeal, and assisted in the petition and substantive briefing as well as the oral argument before the California Supreme Court.

In a contentious personal injury jury trial in Orange County Superior  Court, a 12 person jury returned a verdict for a defendant shopping center owner and property manager in a personal injury action filed by Robin Agers, an employee of the Regency Movie Theater in Laguna Niguel that was struck by a vehicle driven by a movie theater patron and out-of-state driver, who settled out of the lawsuit before the trial began. Plaintiff was represented by Chris Purcell of Santa Ana. Defendants were represented by Greg Amundson of Wood Smith Henning & Berman's Newport Beach office.

In a landmark decision for the building and construction industry, the California Supreme Court handed down this morning a closely watched decision which addresses the hot issue of enforcement of arbitration clauses.

Every year at this time, we review developments in mold litigation from the past twelve months, with an emphasis on personal injury claims. A decade ago we saw widespread media interest in "toxic" mold and an uptick in lawsuits. That was followed by a series of defense victories in the courtroom, largely built on scientific studies which properly framed the nature and extent of injuries and illnesses which could result from mold exposure. The number of mold personal injury cases declined, but they never went away and in the last several years we have seen a number of multi-million verdicts and settlements, contrary to our own expectations that mold personal injury cases were a dying trend.

On February 2, 2012, the Colorado Court of Appeals answered two previously unanswered questions under Colorado's Construction Defect Action Reform Act ("CDARA"): 1) whether notice of construction defects to one party under the statute tolls the running of the statute of limitations as to parties not included in the notice; and 2) whether the statute of repose (i.e. the outside time limit for bringing a construction defect claim) begins to run on a multi-phase construction project at substantial completion of the entire project, or as discrete improvements /components are completed. 

The California Court of Appeal, Second District, held that based upon the exception found within CCP § 340.6(a)(1), the statute of limitations for a legal malpractice action is tolled until an actual injury is suffered.  The Court concluded that the determination of actual injury is a fact specific analysis.  The Court in this instance held that the actual injury sustained did not occur when a partnership agreement was negligently drafted, but rather when the effect of such negligence was realized in the dissolution of a client's partnership due to a lawyer's failure to include provisions dealing with succession in the event of incapacitation.  

In the matter of Alfred Albano, et al. v. Shea Homes Limited Partnership, et al., the Arizona Supreme Court recently held that American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), class action tolling does not apply to Arizona's Statute of Repose, Arizona Revised Statutes § 12-552.  The case was handled by Wood, Smith, Henning & Berman's Arizona office.  

Chinese drywall was first introduced to the United States in 2000 or early 2001. The use of this material increased markedly between 2004 and 2006 as the result of a shortage of domestically produced drywall. Nearly 60 percent of Chinese drywall imported during this time frame came in through Florida ports.

A new mass tort faces America's residential builders, their underwriters and others with an interest in the construction industry: Personal injury claims resulting from chronic exposure to the alleged off-gassing of sulfur compounds from imported Chinese drywall. This issue has now been the subject of numerous features on network television and articles in newspapers.

Architects and engineers must be aware when entering agreements to perform design work that a variety of potential claims may be asserted against them. These may be attributed to alleged design flaws, budget overruns, on-site accidents or even building collapse. With the economic down-turn, problems of delay claims and cost over-runs and claims of construction defects and consequential damages are increasing dramatically.

Two recent decisions from the California Court of Appeal have created uncertainty regarding the defenses that defendants can rely on in asbestos and other toxic tort cases. In the most recent case, O'Neil v. Crane Co., Case No. B208225 (September 18, 2009), the Court of Appeal reversed the granting of a motion for non-suit in an asbestos-wrongful death case. Decedent Patrick O'Neil died of mesothelioma in 2005. His wife and children sued the manufacturers of pumps and valves that were installed on an aircraft carrier on which O'Neil had served as a Naval officer in the 1960s. Following the close of plaintiffs' evidence, the trial court granted the manufacturer's motion for non-suit.

Early this week, a Santa Monica jury returned a defense verdict in a closely watched case involving claims of catastrophic brain injury from alleged mold exposure. Plaintiff Steve White allegedly was exposed to mold while a tenant at a Simi Valley apartment complex.

It is well accepted within the medical community that mesothelioma is primarily caused by exposure to asbestos. Asbestos is a natural mineral made popular by its toughness, flexibility, and resilience to heat. Asbestos can be woven into most products and was typically found in brake pads, transit pipes and panels, plaster, insulation and a variety of other products.

It is well accepted within the medical community that mesothelioma is primarily caused by exposure to asbestos.2 Asbestos is a natural mineral made popular by its toughness, flexibility, and resilience to heat. Asbestos can be woven into most products and was typically found in brake pads, transit pipes and panels, plaster, insulation and a variety of other products.

In cases governed by Colorado's Construction ("CDARA"), subrogation claims arising from construction defects accrue and the two year statute of limitations for such claims begins to run when the physical manifestation of the defect appears, even though the cause of the defect is not known at that time, and even though the insurer may not have paid the claim until much later. See CRS §13-80-104.

SB 972, which applies to all contracts entered into on or after January 1, 2011, provides refuge from burdensome liability to California construction design professionals entering into contracts with public agencies.

The situation is commonplace: Plaintiffs in a toxic tort case name a score of manufacturers as defendants and list 34 chemical products in their
complaint. Although specific products are identified, the balance of the allegations are vague, describing the injuries as resulting from exposure to "organic solvents . . . and other toxic chemicals." Despite the limited facts in the com‐plaint, plaintiffs seek to recover on causes of action for strict liability, fraudulent concealment and breach of warranty.

On May 26, 2011, a Seattle jury returned a verdict in favor of one defendant (represented by WSHB) and against another in a case arising from demolition activities on a construction site. The plaintiff, a clothing wholesaler in a neighboring building, claimed damage to property and profits resulting from its high-end women's fashion inventory and samples being exposed to a large amount of dust. The source of the dust was contested.

In an action brought by an independent contractor against the general contractor for personal injuries sustained on a jobsite, the California Court of Appeal found a triable issue of fact as to whether the general contractor may be directly liable to the independent contractor on the theory that the general contractor retained control over safety conditions at the jobsite and that control affirmatively contributed to the independent contractor's injuries.

On February 28, 2011, the Colorado Supreme Court issued a decision in the case of Ferrellgas, Inc. v. Ellen Yeiser which helped define the law in a number of areas. First, the case holds that the law of subrogation trumps the collateral source rule in determining if a defendant will get an offset for a subrogation settlement.

The California Fifth Appellate District Court of Appeal recently handed down a decision which significantly impacts a home builder's right to repair construction defects. 

The provision in a commercial general liability insurance policy requiring the insurer to "defend the insured against any 'suit' seeking. . .damages" includes the duty to defend the insured in proceedings under the Calderon Act (California Civil Code § 1375, et seq.)

Under the peculiar risk doctrine, a general contractor cannot be held vicariously liable for job site injuries suffered by an independent contractor, even if the independent contractor is not an employee and so is not entitled to receive workers compensation benefits for the injuries.

In a stop notice claimant who has relied upon seemingly correct lender information provided by an owner and/or general contractor is not required to provide proof of checking the county records (i.e., building permit and recorded deed of trust) in order to prove that when it served the preliminary 20-day notice on the wrong lender it held a good faith belief that the "reputed" construction lender was the actual construction lender.

On December 18, 2009, in Suarez v. Pacific Northstar Mechanical, Inc., the California Court of Appeals created a duty mandating employers at multi-employer construction sites to report hazards at the site to which its employees have been exposed. The duty applies to all hazards at the site whether or not the employer installed, worked on or was otherwise responsible for the condition. Under California law, an employer who breaches such a duty is liable in tort.

The California Court of Appeal's decision on December 2, 2009 in Tarrant Bell Property, LLC v. The Superior Court of Alameda County and Spanish Ranch I, L.P. v. The Superior Court of Alameda County gives the trial court discretion in determining whether to enforce a judicial reference provision in the agreements between the owners of a mobile home park and the residents. The court specifically noted that this breadth of discretion did not exist where the agreement required arbitration.

A decision issued on November 24, 2009 by the Second District of the California Court of Appeal may substantially aid defendants seeking to challenge allegations of injury due to secondary exposure to chemicals and other toxic substances. It may also assist defendants in defending all toxic tort claims filed in California.

An Alameda County jury just delivered a defense verdict in favor of an engineer/general contractor in a closely watched asbestos trial.  This two month trial is significant in that a jury exonerated the sole remaining defendant from any liability, despite evidence that the plaintiff, a prominent dentist, developed mesothelioma following exposure to asbestos fibers. The same jury rejected a claim for loss of consortium brought by the plaintiff's wife.

Late Friday, January 23, 2009, an Orange County Jury returned a unanimous defense verdict in favor of our client, Birdwell Holdings L.P.  Our client was sued by Hunt Investors for intentional interference with contractual relations relating to the failed negotiations to purchase an engine testing laboratory.  The co-defendant was Extengine Transport Systems, who also received a defense verdict.  Plaintiff initially sought millions of dollars in damages, which were significantly reduced during the trial due to successful motions in limine.

As we do at the beginning of each year, we are forwarding our 2009 annual mold litigation update. These updates have chronicled the rise and fall of mold litigation during the last decade.

This recent California Court of Appeals decision held that though the statute of limitations generally begins at the date of completion, developers may have a safe haven by completing construction projects but maintaining possession of properties until the market improves. The court rejected the plaintiff homeowner's argument that because the developer continued to own the home for a 16-month period before sale, the 10-year statute was tolled.

Kevin Smith received an overwhelmingly favorable jury verdict this afternoon in a wrongful death trial in Bakersfield, Silva v. Ortiz.   

Shea Homes was absolved of any liability for damages that a Stevenson Ranch family alleged had arisen out of mold  exposure in their home. Jurors in the closely watched personal injury suit returned a defense verdict for Shea, the nation’s largest private home builder, following a three week trial.