ANAHEIM CALIFORNIA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Best Practices: Commercial Lockouts in Arizona

March 19, 2024 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

• Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
• Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

Read the full story...
Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

---

Insured Cannot Sue to Challenge Binding Appraisal Decision

December 16, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court dismissed the insured condominium association's challenge to an appraisal award. The Courtyards at Prairie Fields Condominium Association v. West Band Mut. Ins. Co., 2023 U.S. Dist. LEXIS 169458 (N. D. Ill. Sept. 22, 2023). In July 2020, the insured filed a claim with West Bend for damage to the property's roof and other building components as a result of wind and hail. West Bend inspected and estimated the replacement cost for the damage was $60,989.54. This amount was paid to the insured minus the $10,000 deductible. The insured believed the damage was so severe that the roofs need to be replaced, which the insured estimated would cost $1,389,600. The insured demanded an appraisal. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

1 De Haro: A Case Study on Successful Cross-Laminated Timber Design and Construction in San Francisco

November 06, 2023 — Cait Horner, Adam J. Weaver & Allan C. Van Vliet - Gravel2Gavel Construction & Real Estate Law Blog
At the intersection of San Francisco’s SOMA, Potrero Hill and Showplace Square districts, a first-of-its-kind building offers an example of the potential widespread success of mass timber construction in the United States. 1 De Haro, a 134,000-square-foot, 4-story office and light industrial project built by Bay Area developer SKS Partners is not only the first cross-laminated timber (CLT) building in the San Francisco, it is also the first multistory mass timber building of its type to be fully executed in California and the first CLT project in the United States to be delivered via railways. We recently sat down with Yvonne Fisher and Lee Ishida of SKS to discuss the unique design process, marketing success and overall industry buzz surrounding one of their latest projects. Reprinted courtesy of Cait Horner, Pillsbury, Adam J. Weaver, Pillsbury and Allan C. Van Vliet, Pillsbury Ms. Horner may be contacted at cait.horner@pillsburylaw.com Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com Read the full story...

---

Competitive Bidding Statute: When it Applies and When it Does Not

April 15, 2024 — Mason Fletcher - Ahlers Cressman & Sleight PLLC
The University of Washington (UW), a public university, aimed to secure a real estate developer for a new building on its campus. The proposal involved an 80-year ground lease (the “Lease”), and developers submitted bids. The selected developer would demolish an existing building, construct a new one, own it during the Lease at its own cost, and UW would lease back a portion, with ownership reverting to UW at the Lease’s end. Alexandria Real Equities, Inc. (ARE) was a finalist but ultimately was not selected, and the Lease was awarded to Wexford Science and Technology, LLC (Wexford). As a result, ARE filed suit against UW asserting three claims: 1) UW lacked authority to execute the Lease, 2) UW didn’t follow required competitive bidding procedures, and 3) UW’s developer selection process was arbitrary and capricious. None of these claims were successful and ARE appealed. Division II of the Washington Court of Appeals affirmed in Alexandria Real Estate Equities Inc. v. Univ. of Wash., __ Wn. App. __, 539 P.3d 54 (2023), a published decision. The Court concluded, based on the facts in that case, that because construction was not publicly funded, UW did not have to follow competitive bidding requirements that were laid out in a statute relevant to state universities. Still, the Court applied the “bright-line cutoff point” that prohibits disappointed bidders from challenging an award once a contract has been executed. See Dick Enterprises, Inc. v. Metro. King County, 83 Wn. App. 566, 572, 922 P.2d 184 (1996). Read the full story...
Reprinted courtesy of Mason Fletcher, Ahlers Cressman & Sleight PLLC
Mr. Fletcher may be contacted at mason.fletcher@acslawyers.com

---

Recent Florida Legislative Changes Shorten Both Statute of Limitation ("SOL") and Statute of Repose ("SOR") for Construction Defect Claims

March 19, 2024 — Holly A. Rice - Saxe Doernberger & Vita, P.C.
The Florida Legislature and Governor DeSantis passed Senate Bill 360, effective April 13, 2023, which imposes significant changes to Florida’s statute of limitation (“SOL”) and statute of repose (“SOR”) periods prescribed in Florida Statute § 95.11. In short, the SOL and SOR periods will commence earlier and run earlier, which in effect shortens the time to bring a construction defect claim on both ends of the timeline.1 These changes will have positive impacts for general contractors who may save on insurance premiums with shorter completed operations tails. In other words, the timeframe within which contractors are at risk of being sued for construction-related errors is significantly reduced under the new version of the statute. Owners and developers, on the other hand, may feel that the increased pressure of uncovered construction defects necessitates the filing of lawsuits sooner than they might have otherwise filed. Collectively, all parties involved will certainly have to consider when and how to place their carriers on notice of claims or potential claims and, coupled with Florida’s sweeping changes to fee shifting statutes, insured parties may see more coverage denials which, in turn, could lead to more coverage actions.2 Read the full story...
Reprinted courtesy of Holly A. Rice, Saxe Doernberger & Vita, P.C.
Ms. Rice may be contacted at HRice@sdvlaw.com

---

Court Grants Insurer's Motion for Summary Judgment After Insured Fails to Provide Evidence of Systemic Collapse

April 15, 2024 — Tred R. Eyerly - Insurance Law Hawaii
With the insurer conceding that there was evidence of potential collapse at portions of eight specific building locations, the court granted the insurer's motion for partial summary judgment in determining no additional buildings suffered from collapse. Exec. 1801 LLC v. Eagle W. Ins. Co., 2024 U.S. Dist. LEZXIS 5923 (D. Or. Jan. 11, 2024). Executive 1801 owned a group of six buildings with eighty-six residential units. The court previously granted partial summary judgment on Executive 1801's rain damage claim, leaving only claims regarding collapse. Eagle insured "the property for direct physical los or damage to Covered Property . . . caused by or resulting from any Covered Cause of loss." The policy further provided, "We will pay for direct physical loss or damage to Covered Property, caused by collapse of a building or any part of a building insured under this policy, if the collapse is caused by . . . hidden decay." Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

When OSHA Cites You

April 22, 2024 — Michael Metz-Topodas - Construction Executive
With the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website. Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility. EMPLOYEE EXPOSURE To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard. Reprinted courtesy of Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...
Mr. Metz-Topodas may be contacted at Avoid Five Common Fraudulent Schemes Used in Construction

Illinois Favors Finding Construction Defects as an Occurrence

Minnesota Senate Office Building Called Unconstitutional

Bremer Whyte Brown & O’Meara, LLP is Proud to Announce Jeannette Garcia Has Been Elected as Secretary of the Hispanic Bar Association of Orange County!

Going Digital in 2019: The Latest Technology for a Bright Future in Construction

Real Estate & Construction News Round-Up 01/26/22

The Miller Act Explained

The Evolution of Construction Defect Trends at West Coast Casualty Seminar

White and Williams Celebrates 125th Anniversary

The New Jersey Theme Park Where Kids’ Backhoe Dreams Come True

Real Estate & Construction News Roundup (10/11/23) – Millennials Struggle Finding Homes, Additional CHIPS Act Funding Available, and the Supreme Court Takes up Hotel Lawsuit Case

NIST Florida Condo Collapse Probe Develops Dozens of Hypot
New York Nonprofit Starts Anti-Scaffold Law Video Series

English v. RKK. . . The Rest of the Story

Buyers Are Flocking to NYC’s Suburbs. Too Bad There Aren’t Many Homes to Sell.

Blackstone to Buy Cosmopolitan Resort for $1.73 Billion

Construction Litigation Roundup: “Tender Is the Fight”

Governmental Action Exclusion Bars Claim for Damage to Insured's Building

U.S. Homeowners Are Lingering Longer, and the Wait Is Paying Off

Texas Jury Finds Presence of SARS-CoV-2 Virus Causes “Physical Loss or Damage” to Property, Awards Over $48 Million to Baylor College of Medicine

Insurer Granted Summary Judgment on Denial of Construction Defect Claim

Inspired by Filipino Design, an Apartment Building Looks Homeward

Housing Inventory Might be Distorted by Pocket Listings

Los Angeles Construction Sites May Be on Fault Lines

9th Circuit Closes the Door on “Open Shop” Contractor

Couple Gets $79,000 on $10 Million Construction Defect Claim

Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts

Missouri Legislature Passes Bill to Drastically Change Missouri’s “Consent Judgment” Statute

Cultivating a Company Culture Committed to Safety, Mentorship and Education

Arizona Rooftop Safety: Is it Adequate or Substandard?

Lewis Brisbois Listed on Leopard Solutions Top 10 Law Firm Index

Evolving Climate Patterns and Extreme Weather Demand New Building Methods

Need and Prejudice: An Eleventh-Hour Trial Continuance Where A Key Witness Is Unexpectedly Unavailable

Construction Leads World Trade Center Area Vulnerable to Flooding

Charles Carter v. Pulte Home Corporation

Court of Appeals Expands Application of Construction Statute of Repose

World Green Building Council Calls for Net-Zero Embodied Carbon in Buildings by 2050

Architect Norman Foster Tells COP26: Change 'Traditional' City Design to Combat Climate Change

Seven Former North San Diego County Landfills are Leaking Contaminants

Woman Files Suit for Property Damages

Question of Parties' Intent Prevents Summary Judgment for Insurer

Deleted Emails Cost Company $3M in Sanctions

Nevada Bill Aims to Reduce Legal Fees For Construction Defect Practitioners

Drug Company Provides Cure for Development Woes

Contractors and Owners Will Have an Easier Time Identifying Regulated Wetlands Following Recent U.S. Supreme Court Opinion

Rhode Island District Court Dismisses Plaintiff’s Case for Spoliation Due to Potential Unfair Prejudice to Defendant

Cal/OSHA ETS: Newest Version Effective Today

Environmental Justice Legislation Update

“Based On”… What Exactly? NJ Appellate Division Examines Phrase and Estops Insurer From Disclaiming Coverage for 20-Month Delay

Traub Lieberman Partner Eric D. Suben and Associate Laura Puhala Win Summary Judgment in Favor of Insurer, Determining it has No Duty to Defend

Supplement to New California Construction Laws for 2019

BHA at the 10th Annual Construction Law Institute, Orlando

Requesting an Allocation Between Covered and Non-Covered Damages? [Do] Think Twice, It’s [Not Always] All Right.

William Doerler Recognized by JD Supra 2022 Readers’ Choice Awards

Scarce Cemetery Space Creates Prices to Die For: Cities

Home Prices in 20 U.S. Cities Rose at Slower Pace in May

A Classic Blunder: Practical Advice for Avoiding Two-Front Wars

Happy Thanksgiving from CDJ

Hilary Soaks California With Flooding Rain and Snarls Flights

MGM Begins Dismantling of the Las Vegas Harmon Tower

Forecast Sunny for Solar Contractors in California

Mississippi Sues Over Public Health Lab Defects