The Mau Law Firm - a California Construction, Real Estate and Business Law Firm

New Law Effective January 1, 2012 Codifies Right of Landlord to Ban Smoking

M. Mau — Thu, 05 Jan 2012 21:55:08 +0000

A newly enacted code effective January 1, 2012, has codified the right of a landlord to ban smoking on leased premises. Civil Code Section 1947.5 allows the landlord of a residential dwelling unit, to prohibit the smoking of a cigarette, or other tobacco product on the leased property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located. Leases or rental agreement entered into on or after January 1, 2012 that would have this ban, shall
include a provision that specifies the areas on the property where smoking is prohibited. For a lease or rental agreement entered into before January 1, 2012, a new smoking ban can still be enacted but it would constitute a change of the terms of tenancy requiring adequate notice in writing.

Robinson v. Countrywide Approves of Gomes Decision

M. Mau — Tue, 13 Sep 2011 20:43:34 +0000

In an appeal from a judgment of the trial court, the Fourth District Court of Appeals issued its ruling in Robinson v. Countrywide Home Loans, Inc. (2011) No. E052011. The appeals court affirmed, where the trial court sustained defendants’ demurrer in an action for wrongful initiation of foreclosure and related-causes. The Court held that even if a statutory action for damages or for declaratory relief were available to challenge the standing of a foreclosing entity, plaintiff’s amended complaint does not allege any facts upon which such an action could be based with respect to the defendants. The Court approved of the Gomes decision, noted previously in this blog, that plaintiffs’ had no basis to plead a claim for damages for wrongful initiation of a foreclosure by MERS (Mortgage Electronic Registration Systems, Inc.) as agent for Countrywide. The case does not mean that a borrower who believes that the foreclosing entity lacks standing to do so is without a remedy. The borrower could seek to enjoin the trustee’s sale or to set the sale aside.

Templo v. Gardner Construction Enforces Arbitration Clause from a Construction Contract

M. Mau — Mon, 22 Aug 2011 18:32:38 +0000

In Templo Calvario Spanish Assembly of God v. Gardner Construction Corp. (2011) ([No. F060838. Fifth Dist. Aug. 16, 2011.] the Court of Appeals enforced an arbitration clause from an interesting factual background. This was a contract dispute involving the enforceability of an arbitration provision contained in a construction contract, where the contractor was unlicensed. So the question was whether the contract, and thus arbitration clause in that contract, were automatically void? The trial court had vacated the arbitration award finding that the construction contract with an unlicensed contractor was automatically void. However. the Court of Appeals reversed this decision. The Appellate Court held that under the case precedent of MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, the construction contract was not automatically void just because the contractor was unlicensed. Instead, it confirmed that the Contractors State License Laws still bars suit to collect compensation for unlicensed work.

Hensel Phelps v. San Diego interprets what is a Public Work for the Application of Prevailing Wages.

M. Mau — Tue, 02 Aug 2011 18:45:08 +0000

In Hensel Phelps Construction Co. v. San Diego Unified Port Dist. (2011) (Cal.App.4th) Case No. D057277, the Fourth District Court of Appeals analyzed the meaning of a public work of construction for a semi-private development built on land leased from a public entity.

This was a labor dispute involving the scope of Section 1771 of the State’s prevailing wage law (PWL), Lab. Code section 1720 et seq., where judgment of the trial court granting a petition for a writ of mandate was reversed. The court held that where: 1) a hotel construction project on land that the defendant leases to a private party qualifies as public work within the meaning of the PWL; 2) construction was done under a contract that was paid for in whole or in part out of public funds; and 3) the lease specifies that the defendant will provide a rent credit during the first 11 years of the lease such that the rent credit was deemed to be the equivalent of public funding that helped pay for the construction. The net result, was that prevailing wages should have been paid on this project as a public work.

U.S. Supreme Court Admission

M. Mau — Thu, 09 Jun 2011 22:59:35 +0000

Michael L. Mau, Esq. participated in a Special Admissions Ceremony at the U.S. Supreme Court on May 31, 2011 and has been Admitted to the Bar of the U.S. Supreme Court. This was a program organized as part of the Centennial for Santa Clara University School of Law. The Mau Law Firm extends its appreciation to the Law School’s Dean Polden and all of the Law School staff for making these arrangements!

Fei v. Yoon Denies Subcontractor Prompt Payment Penalties due to a Good Faith Dispute

M. Mau — Tue, 26 Apr 2011 18:04:57 +0000

In Fei Enterprises, Inc. v. Yoon (2011) (No. B209862), the Second District Court of Appeals recently issued a ruling providing some guidance on the applicability of prompt payment penalties under California construction law, and looking specifically at Business and Professions Code Section 7108.5. Section 7108.5 requires general contractors to pay subcontractors within ten days of their receipt of payment (unless otherwise agreed to in writing) or face a 2% per month penalty, unless there is a good faith dispute which allows the general contractor to withhold up to 150% of the disputed amount.

This was a construction dispute involving a claim for breach of a subcontract and prompt payment penalties, where the judgment by the trial court declined to award any penalties. The appeals court affirmed finding the failure to make prompt payment was due to the bona fide existence of a good faith dispute over the amount due under the subcontract, and held that the finding of a good faith dispute should be determined using an objective standard. In other words, the dispute must hold up to a reasonable person test, i.e. it has to be objectively supportable and not just a subjective belief.

Gomes v. Countrywide Rules Against Wrongful Initiation of Foreclosure Claim

M. Mau — Thu, 10 Mar 2011 21:21:50 +0000

In an suit alleging “Wrongful Initiation of Foreclosure”, the Fourth District Court of Appeals (No. D057005, Feb. 18, 2011) in Gomes v. Countrywide Home Loans, Inc. affirmed defendants’ demurrer against plaintiff in a ruling in favor of the bank. By asserting a right to bring a court action to determine whether the owner of the promissory note has authorized its nominee to initiate the foreclosure process, plaintiff improperly attempted to interject the courts into a comprehensive non-judicial scheme. Essentially, the Court found there was no factual or legal basis to bring judicial action, i.e. a lawsuit, into a non-judicial foreclosure scheme as codified in Civil Code Section 2924, et seq. The Court noted that parties can still bring claims for specific wrongful misconduct that occurred in a non-judicial foreclosure, but that was not at issue in this case. Defendants’ demurrer also in part successfully argued that a plaintiff trying to forestall a foreclosure until they “produced the note” was improper. Ultimately, the defendant bank entities won this battle as all this plaintiff could do was speculate on theories without factual support. This plaintiff’s deed of trust also authorized a named defendant to initiate the foreclosure process which was opposite of his allegations, so the allegations failed.

The Mau Law Firm

Blog: http://maulaw.wordpress.com

Website: www.MauLaw.com

Pineda v. Williams-Sonoma Stores, Inc. Disallows Requesting a Zip Code for a Credit Card Transaction

M. Mau — Fri, 11 Feb 2011 18:30:53 +0000

In a landmark decision which may impact every day businesses, in Pineda v. Williams-Sonoma Stores, Inc. (No. S178241. Feb. 10, 2011), the California Supreme Court held that a store may not ask for your zip code as a condition to completing a credit card transaction. The Song-Beverly Credit Card Act of 1971 (Credit Card Act) (Civ. Code, § 1747 et seq.) was designed to promote consumer protection. and one of its provisions, section 1747.08, prohibits businesses from requesting that cardholders provide “personal identification information” during credit card transactions, and then recording that information. (Civ. Code, § 1747.08, subd. (a)(2).) fn. 1. The Court held that section 1747.08 is violated when a business requests and records a customer’s ZIP code during a credit card transaction.

The Mau Law Firm

Blog: http://maulaw.wordpress.com

Website: www.MauLaw.com

Tech Review – Blackberry 9700

M. Mau — Sat, 29 Jan 2011 00:40:06 +0000

This is the first technology blog entry on this site, as I have previously focused just on California law. But as an attorney, keeping current with technology can maximize efficiency. First review, is of my Blackberry 9700 smart-phone. This is a brief review of the pros and cons of this device.

The 9700 was obtained fairly quickly after its release in early 2010. One year later, it is still a capable device. This was an upgrade from a Blackberry Pearl Flip and before that a Blackberry Pearl, so I do know the platform well. The 9700 is quick and responsive, and has received regular software updates since it was put into use in early 2010. It’s current replacement model is the 9780 which has pre-installed the new Blackberry OS 6. However, I have already installed and am using a leaked version of OS 6 which has the latest upgrades for the device. The following are the top 4 pluses and minuses of the 9700.

Pluses:
1. Email – nobody does mobile email better; it is instant push technology; easy to set up and keeps you in contact.
2. Keyboard – the blackberry keyboard is the gold standard for cell phone devices, and I have tried many others.
3. Battery life – in full every day use of calls, texts, email and web access, it lasts a couple of days of regular use.
4. Outlook Sync – works out of the box, period. This means seamless contact, calendar, memo and task management.
Cons:
1. Browser – the Blackberry browser has always been second tier; it is just not that fast or usable (though the new web kit browser in OS 6 is a vast improvement over the OS 5 version).
2. Screen Size – at about 2.4 inches, the screen size is small compared to other popular devices.
3. App Store – while it contains a wide variety of good apps, the number of apps pales in comparison to Apple or Android devices.
4. OS – Blackberry has somewhat been playing catch-up as far as a user friendly operating systems, including as above, the browser. OS 6 is a marked upgrade, but they need to push this further and faster.

Overall, the 9700 is a good smart-phone. If you are a Blackberry user, it is frankly one of the best by RIM. I still have and use mine, but have lately been exploring Android…but that will be a future topic!

The Mau Law Firm

Blog: http://maulaw.wordpress.com

Website: www.MauLaw.com

New Blog Address

M. Mau — Wed, 29 Dec 2010 21:46:40 +0000

Please note, our prior blog site of http://maulaw.spaces.live.com is now:
http://maulaw.wordpress.com. Thank you.