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Archive for the ‘Real Estate Law’ Category

Smoke Detector Compliance Law Change

January 30, 2014 Leave a comment

Commencing July 1, 2014 under SB-745, all smoke alarms including combination smoke alarms, that are solely battery powered shall contain a nonreplaceable, nonremovable battery that is capable of powering the smoke alarm for at least 10 years. This is a slight extension as this change was going to be effective on January 1, 2014. There are also EXCEPTIONS: This section shall not apply to any smoke alarm or combination smoke alarm that has been ordered by, or are in the inventory of, an owner, managing agent, contractor, wholesaler, or retailer on or before July 1, 2014, until July 1, 2015. The amended law is in Health and Safety Code Section 13114.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

San Miguel v. State Farm finds No Duty to Defend Non-monetary Claims

October 22, 2013 Leave a comment

In the recently published case of San Miguel Community Assn. v. State Farm General Ins. Co. (October 1, 2013) (Cal.App.4th, No. G047738. Fourth Dist., Div. Three.), a Court of Appeals ruled that when an insurance company issues a liability policy, agreeing to indemnify its insured against a third party claim for damages covered under the policy, and to defend the insured against any such claim, the insurer does not have a duty to defend the insured against a third party lawsuit seeking only injunctive relief but no compensatory damages.  The insurer’s defense obligation requires it to provide the insured with a defense against a claim seeking damages potentially payable under the policy, not to defend the insured’s honor or otherwise assist it in resolving a non-monetary dispute which a claim for pure injunctive relief was.  It is important when tendering claims to your insurance carrier, to check that the claim has potential coverage and to engage experienced business and insurance law counsel to assist.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

MacDonald v. State affirms employees must exhaust Administrative Remedies before Suing

August 28, 2013 Leave a comment

In MacDonald v. State of California [No. C069646. Third Dist. Aug. 27, 2013] as just published, a Judgment for defendant-employer on plaintiff’s claim for retaliatory discharge was affirmed. The appeals court held an employee must exhaust the administrative remedy set forth in Labor Code section 98.7 before filing suit in superior court for retaliatory discharge in violation of sections 1102.5 and 6310. Labor Code Section 1102.5 is a whistle-blower statute, the purpose of which is to encourage workplace whistle-blowers to report unlawful acts without fearing retaliation. Though this whistle-blower statute does not itself have an administrative remedy, Labor Code Section 98.7 does reference one and the appeals court held that must be exhausted first, and prior to, filing a lawsuit for retaliatory termination.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

Cal. Supreme Court Enforces Public Records Act

July 9, 2013 Leave a comment

In Sierra Club v. Superior Court (No. S194708), the California Supreme Court just issued its ruling enforcing a Public Records Act Request under Government Code Section 6250, et seq. The Supreme Court ruled, that the lower court had improperly denied the Sierra Club’s petition for writ of mandate to compel a defendant-county to provide the Orange County Landbase, a geographic information system (GIS) database in a GIS file format as a public record for a fee covering only the direct cost of duplication. The Supreme Court held that 1) although GIS mapping software falls within the ambit of the computer software exclusion under the California Public Records Act, a GIS-formatted database like the OC Landbase at issue here does not; and 2) accordingly, such databases are public records that, unless otherwise exempt, must be produced upon request at the actual cost of duplication. Key to the ruling it seems, was the principle that the Public Records Act and the California Constitution provide the public with a right of access to government information, and that “Openness in government is essential to the functioning of a democracy.” (Citations omitted). Ultimately, the Supreme Court sided with the public’s right to access of such public government records.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

 

Ninth Circuit Decision Approves of Caltrans DBE Program

May 13, 2013 Leave a comment

The Ninth Circuit Court of Appeals just ruled in the case of Associated General Contractors, San Diego Chapter v. Caltrans (AGC v. Caltrans), No. 11-16228, in which it affirmed Caltrans (California Department of Transportation) outreach program to promote fairness and equity in its federal contracting. AGC had brought suit in 2009 challenging Caltrans’ Disadvantaged Business Enterprise (DBE) program, which seeks to ensure that minority and women-owned businesses are on equal footing to compete for federally-funded contracts.  Summary judgment was granted in favor of Cal-Trans in the U.S. District Court in 2011, and AGC appealed.

Caltrans’ Disadvantaged Business Enterprise program establishes a framework for ensuring fair participation in federally funded public works projects in California. In 2007, an extensive disparity study commissioned by Caltrans documented discrimination against small businesses owned by women and minorities in federally funded contracts, which led to the creation of its new DBE program which was challenged in this action.

The Ninth Circuit Court of Appeals found that AGC did not identify any of its members who had or would suffer harm from the DBE program, such that AGC lacked standing.  Nevertheless, even if AGC had standing the appeal would have failed as the Appellate Court noted that the DBE program survived strict scrutiny as there was strong evidence of discrimination in the transportation contracting community, and the program was narrowly tailored to combat that discrimination.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

Landlords Cannot Demand Payments by only Electronic Means

February 22, 2013 Leave a comment

Effective January 1, 2013, Civil Code Section 1947.3 was amended, and requires that “…a landlord or a landlord’s agent shall allow a tenant to pay rent and deposit of security by at least one form of payment that is neither cash nor electronic funds transfer.”  The landlord may still demand or require cash as the exclusive form of payment for a maximum period of three months following a dishonored or bounced check, or following a tenant’s instruction to stop payment, as long as the proper notice detailed under Section 1947.3 is followed.  Parties to a rental agreement can still voluntarily agree in a lease to have payments by cash or by an electronic payment method, as long as another form of payment is also stated in the lease.

All Rights Reserved © 2013 by Michael L. Mau, Esq. & The Mau Law Firm

 

Landlord May Dispose of Abandoned Personal Property if Less than $700

February 4, 2013 Leave a comment

Effective January 1, 2013, the value of personal property left behind after the termination of a residential tenant’s tenancy that the landlord must sell at a public auction (as opposed to otherwise disposing of), has increased from $300 to $700.  C.C. Section 1988.  Landlords will be prohibited from assessing any storage cost if the tenant reclaims personal property within two days of vacating the premises.   C.C. Sections 1987 and 1990.  As such, the statutory notices of Right to Reclaim Abandoned Property has been revised to reflect these changes, as shown in C.C. Sections 1984 and 1985.   While the increase from $300 to $700 is a welcome one that will allow landlords to dispose of slightly more value-less property then before, arguably the increase should be higher and/or adjusted annually for inflation.

 All Rights Reserved © 2013 by Michael L. Mau, Esq. & The Mau Law Firm

After January 1, 2013 Type One Indemnity Outlawed for Commercial Construction

December 17, 2012 Leave a comment

Effective on  January 1, 2013, “Type I” indemnity clauses covering an indemnitee’s concurrent active negligence will no longer be enforceable under California law for commercial construction.  On October 9, 2011, California Governor Edmund G. Brown, Jr. signed into law Senate Bill 474 on this indemnity issue.  The new law  broadens the class of indemnity provisions that are unenforceable under California law.

Under the current law as of the date of this blog post, provisions in construction contracts whereby a lower tiered subcontractor indemnifies an owner or general contractor against liability caused by the indemnitee’s “sole negligence or willful misconduct” are unenforceable. See Cal. Civ. Code § 2782(a). Additionally, provisions in construction contracts on public projects are unenforceable if they impose on the contractor, or relieve the public agency from, liability for the public agency’s own “active negligence.” Cal. Civ. Code § 2782(b).  Due to these limitations, owners and general contractors often included “Type I” indemnity provisions in lower tiered agreements, whereby a lower tiered subcontractor would agree to indemnify the owner/contractor, even against liability caused by the owner/contractor’s own “active negligence.”  

Under the new law, such “Type I” indemnity provisions will no longer be enforceable. Newly added California Civil Code Section 2782.05 provides that contract clauses that purport to require a subcontractor to “insure or indemnify” a contractor, construction manager or other subcontractor against claims for damages that relate to the active negligence or willful misconduct of the indemnitee, or for defects in design, or against claims that do not arise out of the scope of work of the indemnitor, are unenforceable. Public agencies and private owners are already essentially prohibited from including Type I indemnity provisions in their agreements. See Cal. Civ. Code § 2782(b)(2) and 2782(c)(1) (newly added under SB 474). The new law expands the coverage of that prohibition to include downstream or lower tiered subcontractors and suppliers of goods.   Please see the full text of Civil Code Section 2782.05 for full details of the law.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

 

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