To avoid late completion charges, Civil Code §1511 allows parties to specify in a contract that a party intending to avoid the effect of its failure to perform must assert in writing within a reasonable time that the other party’s act caused the failure. Here the court refused to consider whose fault the delay was […]
Mobile Home Park Application For Conversion Improperly Denied.
A mobile home park applied to a city to convert the park to resident ownership by subdividing the park into individual lots which would be offered for sale to residents. Government Code §66427.5 required the park to conduct a “survey of support.” Only a handful of park residents completed the survey, and of those, 58 […]
Completed And Accepted Doctrine Applied.
Under the “completed and accepted doctrine,” once a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. […]
Burden Of Proof Shifts In Equitable Contribution Action.
After a construction defect action settled, one insurer brought an action for equitable contribution against another insurer. The trial court ordered defendant to pay 43 percent of the defense costs and settlement as well as prejudgment interest. The appellate court stated “the burdens and proof are altered somewhat when one insurer with a defense duty […]
Arbitration Clause In CC&R’s Binding On Association Which Did Not Exist When Drafted.
An owners association filed a construction defect action against a condominium developer, seeking recovery for damage to its property and damage to the separate interests of the condominium owners who compose its membership. In response, the developer filed a motion to compel arbitration, based on a clause in the recorded declaration of covenants, conditions, and […]
Must Follow Contractual Alternative To Right To Repair Act In Construction Defect Matters.
Plaintiffs, owners of 32 homes built by developer, brought a construction defect action. Civil Code sections 895 through 945.5, the Right to Repair Act, prescribe non-adversarial pre-litigation procedures a homeowner must initiate prior to bringing a civil action against a builder for alleged construction deficiencies. Plaintiffs contended the developer did not give the required notice […]
You Spot Zone It, You Buy It.
City imposed an RVL, (residential, very low land restriction), on undeveloped property, which limited parcels to one dwelling per 20 acres. At trial, the court determined city engaged in spot zoning and issued a writ of mandate, giving the City the choice of either complying with the writ or paying damages for the value of […]
No Duty Owed For Death Resulting From Placement Of Gas Meter.
Parents sued Southern California Gas Company for wrongful death when their daughter died after driving her car off a street, over a curb and striking an SCG gas meter located 11 feet, 4 inches beyond the curb. The Court of Appeal reversed judgment for plaintiffs, concluding it was not reasonably foreseeable that SGC’s installation of […]
Appeal From Order Of Good Faith Settlement Dismissed.
The trial court approved a condominium developer defendant’s motion for a determination of a good faith settlement, and another defendant filed an appeal from the trial court’s order. The Court of Appeal dismissed, holding the appeal was from a non-appealable interlocutory order. The court noted Civil Code §877.6 permits review by writ of mandate within […]
If You Want To Work Here, Sign This.
Carpet installers were told to sign a form contract when they were hired and again during their employment. The contract included an arbitration provision among its 37 paragraphs, a six-month statute of limitations and a unilateral attorney fee provision which worked to the detriment to the employees. The forms were in English and the employees […]
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