Accidents May No Longer Be Covered Losses

A recent case has just held that intentional conduct, with unintentional results is not covered as an "accidental loss" under an insurance policy. Fire Insurance Exchange v. Superior Court 181 Cal App 4th 388 (2010). This is a big deal, here is why. If you are a contractor or homeowner that built a home on a lot but, inadvertently built a small portion on the neighbor's side of the property line, you have no coverage for the lawsuit when the neighbor sues you for encroachment, nuisance, negligence, or trespass. The reason: you intended to build the house. It does not matter if you unknowingly or accidentally made a mistake on the placement of the home and inadvertently placed a portion of the structure on the neighbor's lot.

Another example of how this will impact regular people. Two kids are playing by the pool, when one kid decides it would be funny to throw his friend in the pool. Unfortunately, he does not throw is friend far enough and his friend hits his head on the side of the pool and suffers a fractured skull. He is sued by his injured friend for negligence to cover the medical costs and he tenders the lawsuit to his homeowner's insurance carrier. The carrier can deny coverage because the boy intended to throw the other boy. It does not matter that he did not intend to hurt his friend.

I am attorney Robert A. von Esch IV. I handle construction defect, real estate, business, and personal injury matters. If you have any questions about this article or any other matter, please do not hesitate to contact me via www.voneschlaw.com.

Mixed Motives Employment Case To Be Decided By Supreme Court

An important case is now pending before the CA Supreme Court: Harris v. City of Santa Monica. Essentially, Harris (a pregnant bus driver) said she was fired because of her pregnancy. The City said she was fired because of her bad performance record, nevertheless, it requested the Court to allow it to put on a mixed motives defense. Essentially, this defense was designed to allow the City to show that it would have fired Harris regardless of her pregnancy, even though her pregnancy may have been considered as one of the reasons to fire. Traditionally, all that a plaintiff is required to prove is that the protected trait (race, sex, religion, etc) was a motivating factor behind the decision to terminate; even if other reasons were considered (poor performance), plaintiff would prevail.

The Court refused to allow the mixed movtives defense. The Court of Appeal reversed and allowed the mixed motives defense. The final decision will now be made by the CA Supreme Court. This is one to watch as it will have an impact on employment litigation.

I am attorney Robert A. von Esch IV. I practice business litigation. If you would like to contact me or have additional questions about this article, I can be reached via http://www.voneschlaw.com/.

Mello Roos Projects Subject To Prevailing Wage?

A case is now pending before the Second District Court of Appeals involving the Azusa Land Partners against the Industrial Relations Agency (IRA). The dispute arose after the IRA found that the Azusa residential construction project was a public works contract to the extent it relied upon Mello Roos to install certain portions of the project, such as pipe lines, sewers, schools, etc. As a result, these portions of the job were subject to prevailing wages (20-30% higher than private construction wages). Azusa sued the IRA to overturn its decision, the Los Angeles Superior Court agreed with the IRA and held that the job was a public works project.

This is an important case for contractors and consumbers alike. If the Court of Appeals upholds the decision, residential housing costs are going to get more expensive as the cost to build the projects will increase. This is one to watch.

I am attorney Robert A. Von Esch IV and I handle construction disputes, construction defect, and real estate matters. If you have any questions, please contact me via www.voneschlaw.com.

Court Layoffs Will Result In Civil Court Delays

The headlines over the past two weeks have made it clear: LA Superior Court is laying off nearly 300 support staff workers. This will result in the closure of Court departments. As a result, civil matters will get sent to the back burner because criminal and family matters have priority. The days of civil lawsuits taking 3-5 years to complete are back again. So much for fast track legislation that required a civil matter to be resolved within one year, unless, it was deemed a complex matter. Construction defect, real estate, business, and personal injury lawsuits will take a lot longer for plaintiffs to resolve, as these are all civil matters.

I am attorney Robert A. Von Esch IV. If you have any questions about any of the above, please refer to my website at www.voneschlaw.com or give me a call.

Interesting Employment Decision by CA Supreme Court

On February 18, 2010, the CA Supreme Court overruled the CA Court of Appeals and held that Labor Code Section 233 (aka "kinder care" statute), which permits an employee to use accrued paid sick leave to care for ill relatives, does not apply to paid sick leave employment agreements/policies that provide for an uncapped number of compensated days off. Thus, if your sick leave policy provides for a capped number of compensated days off, Labor Code 233 applies. If your sick leave policy is very generous and provides for unlimited sick days, you don't get the protection of Labor Code 233. This decision is twisted. Look up McCarther v. Pacific Telesis Group for the complete decision.

I believe in being fair to employers and understand that they are providing jobs, which is important for society. Employers need to be protected, just as much as employees need protection. However, in this case, the employers could have protected themselves very easily by simply revising their paid sick leave policy. The CA Supreme Court just took away an entire employment groups paid sick under Labor Code 233. I wouldn't be surprised if this case is revisited by the higher courts in the future.

I provide business litigation legal services in Southern California. I represent employers and employees. If you have any questions, please do not hesitate to contact me. My webiste is http://www.voneschlaw.com/.

Real Estate Brokers Be Wary

You must have a valid real estate brokers license to obtain compensation for brokering a real estate transaction. If you do not have a valid license at the time of providing the service, you have no right to compensation. See California Business & Professions Code 10136.

It is very popular in the real estate business to pay a "finder" fee to someone bringing a buyer and seller together. This technically is legal. See Tyrone v. Kelly, 9 Cal 3d 1, 11-12 (1973).

However, if the "finder" engages in negotiations between the parties, even to the slightest extent, a brokers license is required. See Rees v. DRE, 76 Cal App 3d 286, 295 (1977).

Thus, if the "finder" encourages one party to pay a certain price, offers advice about a fair price, or does anything other than simply introduce a buyer and seller, he risks not being entitled to any compensation. Without a valid license, no payment can be had, despite having a contract or promise to do so.

I am attorney Robert A. Von Esch IV and I provide business litigation, commercial real estate, and construction defect legal services. More information about my practice can be found at http://www.voneschlaw.com/

Legal Advice About Your Home Remodel

No license no pay! That's right, if you are engaged in a construction dispute with your remodel contractor or any contractor, check the California State Contractors License Board website to verify whether his or her licence is in good standing.

If your contractor does not have a valid license in good standing, he or she has no right to collect any fees for work performed. You could have the contractor build you an entire house that cost $500,000 and owe him or her absolutely nothing if the work was performed without a valid contractor's license in good standing.

In fact, if your contractor has already finished the job and you have already paid your contractor for the work, you can demand reimbursement of all money paid. There are well known cases where contractors have worked on large commercial projects worth millions of dollars and accidentally allowed their license to expire, and have had to forgo any payment for their hard work.

If you are a contractor, there is a lesson to be learned: Keep Your License In Good Standing. If you are a consumer, there is also a lesson to be learned: Check Your Contractors License.

If you have any questions, please feel free to contact me at www.voneschlaw.com