Author - Chelsea L. Zwart

1
IMPORTANT ALERT: New California “Construction” Legislation
2
UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart
3
California Legislative Alert
4
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
6
Federal And State Courts Of Appeal Offer Further Guidance On Discriminatory Versus Legitimate Non-Discriminatory Business Decisions And The Weight Of The “Knowledge” Factor
7
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
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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
9
$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation
10
Immigration Status No Longer Discoverable in Personal Injury Cases

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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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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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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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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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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$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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Immigration Status No Longer Discoverable in Personal Injury Cases

By: Jon A. Turigliatto, Esq. and Chelsea L. Zwart, Esq.
December 9, 2016

NEW CALIFORNIA EVIDENCE CODE SECTION 351.2 PROHIBITS DISCOVERY AND ADMISSIBILITY OF A PERSON’S IMMIGRATION STATUS FOR PURPOSES OF LIMITING DAMAGE CLAIMS.

On January 1, 2017, AB 2159, which prohibits discovery related to a person’s immigration status in personal injury and wrongful death actions, will become effective, adding Section 351.2 to the California Evidence Code and overturning Rodriguez v. Kline (1986) 186 Cal.App.3d 1146.

Under Rodriguez v. Kline, an individual injured in the United States who is subject to deportation is not entitled to compensation based upon his or her projected earning capacity in the United States, but rather may only recovery damages for lost future income the individual would have earned in his or her country of origin. Later case law applied Rodriguez v. Kline to the recovery of medical costs, limiting recovery by an undocumented person to the amount the individual would have incurred for medical treatment in his or her country of origin.

Newly introduced Evidence Code Section 351.2 states:

(a) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.

(b) This section does not affect the standards of relevance, admissibility, or discovery prescribed by Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.

Proponents of Section 351.2, which effectively invalidates Rodriguez v. Kline, assert that the rationale behind the new law is to ensure that personal injury and wrongful death victims are not penalized for their immigration status and to protect undocumented immigrants from being exploited.  The intent is to equalize compensation received by persons who work and live in California and thus should be entitled to equal treatment in the California court system, regardless of immigration status.

By prohibiting the discovery and admissibility of a plaintiff’s immigration status, the new code section will have a severe impact on defendants’ potential exposure for damages relating to lost income and medical expenses.  After January 1, 2017, an undocumented person’s loss of earnings claim will no longer be limited to wages earned in his or her country of origin, but will rather be based on the individual’s income in the United States, whether here legally or not.  The same will be true for medical expenses, which will be based on those actually incurred.

Historically, many undocumented plaintiffs did not pursue loss of earnings claims as defendants regularly pointed to immigration status as a way to significantly lower potential exposure for such claims. Given that earnings and medical costs are generally substantially higher in the United States than in countries from which people immigrate without documentation, the enactment of Evidence Code Section 351.2 will deliberately result in larger awards for loss of income and medical expenses to injured immigrants.

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