Monthly Archives: June 2014

When Is A Defect Patent?

Click for Delon Hampton v. Superior Court.

Delon Hampton provides a useful summary of latent and patent construction defects.  This is a critical analysis for construction litigation as a claimant has as many as ten years from the date of completion to sue for latent defects while only four for patent ones.

The case involved  a stairway at a train station that was too narrow with a handrail that was too low.  The court recognized that a defectively secured handrail was latent because the defect was not readily apparent.  Whether a stairway is narrow or a handrail too low is apparent, even if most people would not recognize the problem.

Builders and developers appreciate these statutes of repose as they provide some closure once four or ten years elapse from substantial completion.   The analysis, however, can often be subtle even when matters are right in front of your eyes.



Iskanian- The Evolution Of Arbitration Agreements In California

Click here for Iskanian opinion.

For the past several years, I have served as an update author of the CEB publication, California Real Property Remedies and Damages.  In past years, incorporating recent cases into the text was an easy way to provide a few hours of pro bono service and to keep abreast of an area of law near and dear to my practice.  Earlier this year, however, I had the giant task of incorporating the initial California fallout from the U.S. Supreme Court’s 2011 ruling in AT&T Mobility v. Concepcion. The case created tremendous tension between the California Supreme Court and its protection of consumers subject to unconscionable arbitration agreements and the United States Supreme Court, which interprets the Federal Arbitration Act (FAA) to require arbitration much more broadly than does California.

For example, in
Sonic-Calabasas A, Inc. v. Moreno (2013) 57 C4th 1109, the California Supreme Court overruled itself in light of Concepcion.  The California court previously held that an employer could not require an employee to agree to arbitration and to waive an administrative hearing to recover owed wages as a condition of employment. In Moreno, the California Supreme Court concluded that it could still enforce its own rules concerning unsconscionability provided that those rules do not interfere with the “fundamental attributes of arbitration.”   The California Supreme Court started down a path of acknowledging the preemptive nature of the FAA and the strong tide pulling in favor of even oppressive arbitration agreements.

Iskanian v. CLS Transportation Los Angeles
expanded the preemption of the FAA, affirming an arbitration agreement that banned employees from asserting a wage/hour claim as a class action. Iskanian followed Concepcion and overruled Gentry v. Superior Court (2007) 42 Cal.4th 443, which had permitted courts to disregard arbitration agreements that banned a class action if arbitration could not approximate the advantages of that class proceeding.

Justice Liu, however, left open a small door for California courts to hear matters otherwise subject to an arbitration agreement.   The California Private Attorneys General Act of 2004 (PAGA) found at California Labor Code, § 2698 et seq. provides a right to employees to step into the shoes of the state to seek civil penalties against an employer.  
Iskanian held that PAGA was a public action between an employer and the state, as opposed to a private action between an employer and employees, and that the FAA cannot intrude on the right of a state to litigate its claims in its courts.  

The breadth of FAA preemption continues to increase.  
Iskanian acknowledges this, but still takes enough of a stand to indicate that further action by the United States Supreme Court is not unimaginable.  


Contra Costa Court Budget Season 2014

Court Budget Season 2014 : Contra Costa Lawyer Online.

Judge Goode provides a snapshot of the current budget issues in Contra Costa County in Contra Costa Lawyer Online.  The last time I appeared to get a trial date, I needed to avoid a number of dates in Spring of 2014.  The judge was able to avoid any conflicts since the next available date for trial was April 2015.  The courts in this county are overwhelmed.  If the system needs to make more cuts, then they will disproportionately affect the civil side, making the concept of civil justice even more illusory.