Author - David A. Napper

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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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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
4
UPDATE – McMillin Albany LLC v. Superior Court
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The Ongoing Debate Concerning Automobile Service Advisors’ Rights to Overtime Wages
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UPDATE – McMillin Albany LLC v. Superior Court
7
Complex Civil Litigation Program and its Expansion to San Bernardino County
8
Total Transportation Gets Hauled Away
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California Complex Civil Litigation Superior Court Panels
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Extra Extra

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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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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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.

The Ongoing Debate Concerning Automobile Service Advisors’ Rights to Overtime Wages

By: David A. Napper and Alexandra R. Rambis
September 30, 2016

Are automobile service agents exempt from the Fair Labor Standard Act’s (“FLSA”) overtime requirements? Although the United States Supreme Court has remanded the case back to the Ninth Circuit to interpret the statute without deference to the Department of Labor’s decision, one thing is certain now: the answer will have significant implications for automobile dealerships.

In Navarro v. Encino Motorcars, LLC (2016) 136 S. Ct. 2117, service advisors brought an action against the automobile dealership where they were employed, alleging that their employer was required by the FLSA to pay them overtime wages. The dealership argued that the position and duties of a service advisor brought the plaintiffs within an exemption to the FLSA provisions, which exempts employees engaged in selling or servicing automobiles from overtime wages. Indeed, the FLSA exemption, codified as 29 U.S.C. §213(b)(10)(A), exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”

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UPDATE – McMillin Albany LLC v. Superior Court

By: Richard H Glucksman and David A. Napper                                     September 30, 2016

The matter has been fully briefed and the construction industry is one step closer to receiving the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132.  The Supreme Court will address the split of authority presented by the Fifth Appellate District Court’s holding in McMillin Albany, which outright rejected the Fourth Appellate District Court’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.  The issue is 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, 2013.  Oral argument is still pending, and CGDRB will continue to closely monitor the progress of this case.  Stay tuned.

Complex Civil Litigation Program and its Expansion to San Bernardino County

By: Richard H. Glucksman and David A. Napper
September 30, 2016

Complex Civil Litigation Programs have been utilized in California for over fifteen (15) years. Complex cases require more intensive judicial management, and include claims such as construction defects, mass torts, class actions, antitrust, securities claims, and toxic torts. The Presiding Judge in a department dedicated to managing highly complex cases is tasked with providing exceptional and individualized judicial management, expedited resolution of complex issues, and cost and resource efficiencies.

The creation of the department is the result of increased levels of funding received by the Court.  With its creation of a Complex Civil Court system, San Bernardino joins numerous other counties throughout California – including, but not limited to: Alameda, Contra Costa, Los Angeles, Orange, Riverside, San Francisco, and Santa Clara – which already handle complex civil matters.  San Bernardino Superior Court is the most recent Court to implement a Complex Litigation Department, effective September 6, 2016.

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Total Transportation Gets Hauled Away

How Worker Demands are Changing the Transportation Industry

By: David A. Napper and Neil A. Eddington
April 24, 2016

Total Transportation Services, Inc. (“TTSI”), a prominent drayage hauler out of the Los Angeles and Long Beach ports, recently filed for Chapter 11 bankruptcy. The bankruptcy filing is the direct result of workers’ demands for employee designation.1

For many years, drayage hauling – the short-distance transport of goods from local ports –functioned primarily through an “owner-operator” business model where drivers contracted to perform services using trucks they either own or lease. As a result, the drivers had always been characterized as independent contractors not employees. However, in 2010, after the IRS ruled a single TTSI driver was an employee, other TTSI drivers began to resist the model, filing their own suits to garner employee designation.2  For companies like TTSI, litigation expenses have piled up and led to bankruptcy; for the drayage hauling industry, the viability of its business model is in doubt.

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California Complex Civil Litigation Superior Court Panels

By: Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper
November 24, 2014
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The Complex Civil Litigation Program is relatively new as it has only existed in California since 2000. Complex divisions dedicate courtrooms solely for litigation of complex civil cases that require exceptional judicial management including construction defects, antitrust, securities, toxic torts, mass torts, and class actions. Complex civil courtrooms help the trial court operate in a more efficient, expeditious, and effective manner. A complex court reduces costs for litigants by streamlining motion practice and expeditiously resolving discovery disputes.

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Extra Extra

All Claims for Construction Defects in Residential Construction Sold on or after January 1, 2003 are Subject to Requirements and Procedures of the Right to Repair Act (SB 800)

McMillin Albany LLC v. Super Ct. 2015 F069370 (Cal.App. 5 Dist.)

By: Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper
September 8, 2015
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In a particularly dramatic and noteworthy fashion and breaking with the Fourth Appellate District and rejecting the holding in Liberty Mut. Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, the Fifth District Court of Appeal held that the California Legislature intended that all claims arising out of defects in new residential construction sold on or after January 1, 2003 are subject to the standards and requirements of the Right to Repair Act, commonly referred to as SB800, including specifically the requirement that notice be provided to the builder prior to filing a lawsuit.  Thus, SB 800 is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003.

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