Publications Archives

Avoiding Disability Discrimination Claims: Reasonable Accommodation & Interactive Process "How To"

An employee comes to work with a cast on his leg. An employee comes to you and tells you that the light in his office gives him headaches. An employee states that the reason she is not as productive is because her left hand hurts when she types. An employee has exhausted his disability leave, but the employee indicates that further accommodation is needed.

AB 1892: Attempting to Protect Homeowners from the Perils of Construction Defect Litigation... One Sentence at a Time

Brace yourself, for you are about to be floored by how close a groundbreaking piece of legislation came to changing the landscape of construction defect litigation forever. It nearly snuck in right under our noses. If not for Governor Brown swooping in at the last minute to veto the bill, many of us may have been facing a serious downturn in business. The epic bill being referred to is Assembly Bill 1892 ("AB 1892"), introduced by Assembly Member Linda Halderman. 

Insuring Title to Subdivided Land

Does a standard title insurance policy provide assurance that real property can be sold as subdivided parcels, as shown on a recorded parcel map? A recent court decision reaffirms that the answer is no. It may be possible, however, to purchase an endorsement that will provide coverage.

Important Estate Planning Law Changes - The American Taxpayer Relief Act

Happy New Year! As you know, Congress celebrated the new year by stepping out with some new tax legislation in response to the 2012 "fiscal cliff." This tax legislation, known as the "American Taxpayer Relief Act," was signed into law by President Obama on January 2, 2013. The historical uncertainties experienced over the past several years in the field of estate planning as a result of the changing estate and gift tax exemption and the scheduled ends of the previous laws have now been replaced with more permanent federal estate and gift tax legislation. 

New Law in Effect for 2013 Regarding Commissioned Employees

If you have any employees that receive commissions as part of their compensation package, you need to be aware of a new law that went into effect as of January 1, 2013. AB 1396 amended California Labor Code section 2751.

The new law provides, "Whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract shall be in writing and shall set forth the method by which the commissions shall be computed and paid."

Can an Intervening Insurance Company Sue for Breach of Contract?

A recent case questioned the legal basis for an intervening insurance company, on behalf of its suspended developer insured, to directly sue subcontractors for various causes of action including: indemnity, breach of warranty, declaratory relief, negligence, and most notably breach of contract for failure to obtain additional insured endorsements and duty to defend. In the case, the insurance company is not the contracting party - as in most cases - yet is suing as though it is a direct party to the contract. This gives rise to the question:

Does an intervening insurance company have any legal basis for bringing breach of contract causes of action against subcontractors?

California Court Finds Deed of Trust Enforceable Despite Failure to Name a Trustee

Can there be a trust without a trustee? If the trust instrument is a California deed of trust, the answer is now yes.

In Shuster v. BAC Home Loans Servicing, LP (2012) WL 5984222, the plaintiff/borrowers had borrowed the sum of $670,000, executing a deed of trust as security for the loan. The deed of trust failed to name a trustee. After the borrowers defaulted, the beneficiary recorded a substitution of trustee "substituting" a new corporate trustee. The substituted trustee held a non-judicial foreclosure sale of the property. The borrowers then filed suit, seeking to set aside the sale. The borrowers argued in their lawsuit that the failure to name a trustee in the deed of trust converted the deed of trust to a mortgage and, therefore, the beneficiary could foreclose, if at all, only by means of a court-supervised judicial foreclosure. The trial court and the Court of Appeal disagreed, finding that "the naming of the trustee is irrelevant to the creation of the deed of trust, so long as a trustee is named prior to the foreclosure."

Timekeeping Issues: Can Employers Round Employees' Punch In/Out Times by the Nearest Tenth?

Timekeeping...you already know that all California employers are required to keep copious records of an employee's time in and out for purposes of paying wages and overtime, and ensuring that meal periods are taken. A common and long-standing practice in timekeeping is to round to the nearest tenth of an hour. Recently, this practice was called into question in the case of See's Candy Shops, Inc. v. Superior Court, (2012) D060710.

Marijuana Dispensaries Blowing Up in Smoke

The medical use of marijuana is a hot topic in California. The regulation of dispensaries has generated numerous land use regulations, and landlord-tenant disputes now before the California Supreme Court. Dispensary regulation creates a mechanism for local government oversight of medical marijuana cultivation and distribution. Local state government enforcement includes zoning and conditional use permitting under the purview of the City Council. There are a number of legal issues that arise for landlords, tenants, employers, dispensaries, growers, and individual users of medical marijuana. Although the sale of marijuana is legal in California for medical purposes per the Compassionate Use Act, the sale and use of marijuana is a federal offense. Business and property owners have found that legal assistance is required in maneuvering through the conflict of state versus federal law.

Court of Appeals Weighs in on Contribution Actions Between Insurance Carriers in Construction Defect Actions

A recent insurance law decision by the California Court of Appeals, St. Paul Mercury Insurance v. Mountain West Farm Bureau Mutual Insurance, (2012) 210 Cal.App.4th 645, clarifies the role and obligations of insurance carriers for subcontractors involved in construction defect litigation. This decision potentially sounds a very ominous note for both subcontractors and their carriers as it makes clear the peril inherent in refusing the general contractor's demand for a defense at the outset of a case.

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