Monthly Archives: April 2014

Mouris Ahdout v Majid Hemjatjah 213 CA4th 21 (2013)

by Lauren LaPorte

gavel-2Court has jurisdiction to reverse arbitrator’s decision which refused to disgorge construction fees to consumer for contractor’s license violation.  Business and Professions Code Section 7031 claims(for disgorgement of compensation received by unlicensed contractors) constitute a “public policy”exception to the general prohibition of judicial review of arbitration awards.

Where an unlicensed contractor was a general partner of one of the two owners of an LLC (Limited Liability Company) designed to develop realty, and the general partner received its fee of 25% of the project’s total construction costs, it was reversible error for an arbitrator to refuse to order the general partner to disgorge all of its earned construction fees upon the LLC’s demand therefore on the grounds that the general partner’s contractor was unlicensed.  Courts (and arbitrators) may not Continue reading →

Lawyer Priorities

by Lauren LaPorte

SONY DSCA lawyer went out and bought the BMW of his dreams.  As he was driving home from the dealer he decided to see what the car could do.  He was whizzing around a corner at 80 miles an hour and hit an oily patch and skidded into a tree–he totaled the car and severed his wrist.

The next motorist on the scene screeched to a halt and rushed over to the bloody scene  Stunned the lawyer was sobbing…”My car… Look at my new car…”

“Are you nuts, buddy?”-yelled the passerby pointing at his mangled arm.  “Look at your wrist!”

“Oh, no” gasped the lawyer, looking over and paling visibly–“MY ROLEX!”

Case of R&R Pipeline v Bond Safeguard Insurance Co

by Lauren LaPorte
223 CA4TH 438 (2014)

In this case a Contractor provided a storm drain and sewer for a golf course subdivision brought suit to enforce a payment and performance bond. The Court found that the contract between the developer and County which mandated subdivision improvements prior to the receipt of a final map from the County was not a “contract for a work of public improvement. Also the Court found that the notice provisions for recovery on a private work payment bond did not apply.

golf courseR&R Pipeline(“R&R”) appealed from a judgment in favor of Bond Safeguard Insurance Co(“Bond Safeguard”) to enforce a labor and material bond which it issued in connection with a subdivision development of a golf course and residences. The Trial Court applied the statute of limitations applicable to enforcement of labor and material bonds for public works of improvement.

The Appellate Court reversed the Trial Court and agreed with R&R that the work performed was a “private work” of improvement –even though the work was required by a subdivision agreement with a public entity. Therefore the four(4) year statute of limitations to enforce written contracts applied to R &R’s action to enforce the bonds. Continue reading →

What is a contract?

by Jason LaPorte

Contract1. A promise that the law will enforce. A painter agrees to paint your house for $15000. You expect the house painted and the painter expects his $15000

2. Society could not function without reliable promises, law of contracts, promises must be enforced, whole fundamental principal

3. Not all contracts are written. They can be oral and written. Just remember an oral contract is not worth the paper it is written on.

4. Certain contracts have to be in writing. These contracts were derived from the ancient English statute which was called the statute of frauds. The following contracts must be in writing to be enforceable: Continue reading →

Gilbane Building Co v Superior Court 2014 DJDAR 2164

by Lauren LaPorte

schoolAn organization which does not pay taxes in a school district, but which has at least one member which pays taxes in the school district, has standing to sue a contractor for disgorgement of contract payment made to it by the school district where the plaintiff alleged  that contractor had made improper payments and given gifts to school district employees in exchange for the award of construction contracts in the district.  Under the Government Code, government employees may not be financially interested in any contracts awarded by them or to which the district is a party, and contracts entered into in violation of those requirements are void.

Senate Bill 587 Requires New Plumbing Fixtures

by Lauren LaPorte

Dripping FaucetThe above bill residential and commercial real property built before January 1, 1994 to replace plumbing fixtures that are not water conserving.  On or after January 1, 2014 all alterations or improvements to single-family residential property require water conserving plumbing fixtures to replace other noncompliant fixtures as a condition for issuance of a certificate of final completion and occupancy or final permit approval by the local building department  A state mandated local program would be instituted to ensure compliance  The bill requires that all non compliant plumbing fixtures in a single-family residential real property shall be replaced by the property owner  with water-conserving fixtures.

The same terms would apply to multi-family residential real property and commercial property–in that all water conserving plumbing fixtures  would have to be installed before January 1, 2019.  On or after January 1, 2014 for specified building alterations or improvements the multifamily property would require the replacement of water-conserving plumbing fixtures as a condition for certificates of final completion an occupancy.

The bill also requires that on or after January 1, 2017 that a seller or transferor of single-family residential and real property , or commercial real property disclose to a purchaser or transferee, in writing specified requirements for replacing plumbing fixtures and whether the real property includes noncompliant plumbing.

KB Home Greater Los Angeles Inc v Superior Court (2014) 2104 DJDAR 2140

by Lauren LaPorte

KONICA MINOLTA DIGITAL CAMERAThe Right to Repair Act — in Civ Code Section 895 forward requires that a buyer of a new home that is subject to the Act give notice of any claimed defects to the developer/builder before making any repairs to the home.  Giving the developer/builder notice of the alleged defects only after repairs have been made does not constitute substantial compliance with the Act, as one of the purposes of the Act is the give the developer/builder an opportunity to correct the defects and avoid litigation, and late notice would defeat that purpose.  Where notice is not given before repairs are made, an insurance company which pays for the repairs may not recover the amounts it paid in a subrogation action against the developer/builder on a cause of action for violation of the Act.

The McAffrey Group Inc (Petitioner) v
The Superior Court of California, County of Fresno

by Lauren LaPorte

HOMEOWNERS MUST COMPLY WITH BUILDER’S PRE-LITIGATION PROCEDURES IN PURCHASE AGREEMENT BEFORE SUING FOR ALLEGED CONSTRUCTION DEFECTS UNDER RIGHT TO REPAIR ACT

THE MCAFFREY GROUP INC(PETITIONER) V THE SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO(RESPONDENT–JESUS CITAL ET. AL REAL PARTIES IN INTEREST 2014 DJDAR 3712(2014

This case is a petition for a writ of mandate brought by McAffrey Group which is a builder and developer of single family homes in Fresno. Real parties in interest own 24 homes within the development–19 of those homes are owned y 32 individual who purchased their homes directly from McCaffrey.. Nine of the 19 homes were sold before 2013 using a 2001 version of McCaffrey’s “Combined Purchase and Sale Agreement and Joint Escrow instructions” and “Homeowner Warranty.” Five of the 24 homes are owned by Continue reading →