Mobile Home Owners Not a Class in Drainage Lawsuit
March 01, 2012 —
CDJ STAFFComparing it to a “complex construction defect action,” the California Court of Appeals for Orange County has rejected the claims of a group of mobile home owners that they should be certified as a class in their lawsuit against Huntington Shorecliffs Mobilehome Park. The Appeals court sustained the judgment of the lower court. The court issued a decision in the case of Criswell v. MMR Family LLC on January 17, 2012.
The claims made by the group were that the owners and operators of the mobile home park had known of an “on-going and potentially worsening shallow groundwater condition on the property” and had “exacerbated the problem by changing ‘the configuration and drainage related to the hillside that abuts’ the park.” The homeowners claimed that the class should consist of “any past or current homeowner during the same time frame” who had experienced “the accumulation of mold, fungus, and/or other toxins,” “property damage to his/her mobilehome and/or other property resulting from drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins,” emotional distress related to drainage problems or mold, and finally health problems “resulting from exposure to drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins, in or around one’s home, lot, or common areas of the park.”
The lower court concluded that while the limits of the class were identifiable, they failed to constitute a class in other ways. First, the people affected were small enough in number that they could be brought together. They “are not so numerous that it would be impracticable to bring them all before the Court.”
The court noted that while many of the homeowners would have issues in common, they did not find “a well-defined community of interest among the class members.” The Appeals Court wrote that “the individual issues affecting each mobile home and homeowner will predominate over the common issue of the presence of standing or pooling water in and around the park.” The court noted that each home would be affected differently by water and “the ‘accumulation of mold, fungus, and/or other toxins.’”
While the court conceded that there would be common issues, such as the “defendants’ alleged concealment of excess moisture conditions and their allegedly negligent roadwork and landscaping,” they noted that “these common issues would be swamped by the swarm of individual determinations of property damage, emotional distress, and personal injury.” The Appeals Court cited an earlier case that ruled against certification “if a class action ‘will splinter into individual trials.’” The court affirmed the judgment of the lower court that they could not proceed as a class.
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Sales of U.S. Existing Homes Rise to One-Year High
October 22, 2014 —
Michelle Jamrisko – BloombergSales of previously owned homes climbed in September to the highest level in a year, pointing to growing confidence in the U.S. economy as employment firms.
Purchases advanced 2.4 percent to a 5.17 million annual rate, the National Association of Realtors reported today in Washington. Demand was up 1.9 percent compared with the same month last year before adjusting for seasonal patterns.
Americans are returning to the real-estate market as employers have added 2 million workers to payrolls so far this year. Sales stand to get an additional boost in the final months of 2014 as the drop in mortgage rates caused by slowing growth in Europe and emerging nations makes properties more affordable for first-time buyers.
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Michelle Jamrisko, BloombergMs. Jamrisko may be contacted at
mjamrisko@bloomberg.net
Pennsylvania Supreme Court Will Not Address Trigger for DEP Environmental Cleanup Action at This Time
August 14, 2018 —
Gregory Capps - White and Williams LLPOn July 18, 2018, in Pennsylvania Manufacturers’ Association Insurance Company v. Johnson Matthey, Inc., et al., No. 24 MAP 2017 (Pa. July 18, 2018), the Pennsylvania Supreme Court quashed the Pennsylvania Manufacturers’ Association’s (PMA) appeal seeking review of a ruling denying its motion for summary judgment for an order that coverage for the cleanup of a toxic waste site is limited to the policy in effect when property damage was first discovered. In short, the court found the lower court’s ruling only narrowed the dispute between the parties and is, therefore, interlocutory and not appealable at this time.
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Gregory Capps, White & Williams LLPMr. Capps may be contacted at
cappsg@whiteandwilliams.com
New Law Impacting Florida’s Statute of Repose
June 29, 2017 —
Meredith N. Reynolds & K. Stefan Chin – Peckar & Abramson, P.C.On June 14, 2017, Governor Scott signed House Bill 377 into law, clarifying that Florida’s ten-year
Statute of Repose commences either when the work is completed or when final payment becomes
due, whichever is latest. The new law resolves a problem for contractors created by a recent Florida
court ruling that held the Statute of Repose to commence as late as when the owner made final
payment. The applicable amendments to Florida Statute Section 95.11 take effect on July 1, 2017
and apply to all causes of action that accrue on or after that date.
Perhaps the most critical component of a construction professional’s risk management program is
the length of time that it is liable for the work performed on a project. While contractual warranty
periods typically run one or two years from substantial completion, the true length of a contractor’s
post-completion obligation is measured by the “Statute of Repose,” which establishes the period of
time following the completion of construction that a lawsuit can be filed for construction defects.
Reprinted courtesy of
Meredith N. Reynolds, Peckar & Abramson, P.C. and
K. Stefan Chin, Peckar & Abramson, P.C.
Ms. Reynolds may be contacted at mreynolds@pecklaw.com
Mr. Chin may be contacted at kschin@pecklaw.com
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Use It or Lose It: California Court of Appeal Addresses Statutes of Limitations for Latent Construction Defects and Damage to Real Property
August 02, 2017 —
Omar Parra & Jesse M. Sullivan - Haight Brown & Bonesteel LLPThe First Appellate District of the California Court of Appeal recently confirmed California’s latent defect statute of limitations, codified in California Code of Civil Procedure section 337.15, bars only claims based on construction defects. Estuary Owners Association v. Shell Oil Company, No. A145516, (Cal. Ct. App. July 26, 2017). The Court also reemphasized that under California’s three-year statute of limitations for damage to real property, delineated in California Code of Civil Procedure section 338(b), the actual and constructive knowledge of the prior landowner is imputed to the current landowner.
Estuary Owners Association concerned the development and construction of a 100-unit condominium by Signature at the Estuary, LLC (“Signature”) on land Shell Oil Company (“Shell”) previously used as a fuel distribution terminal. Construction of the condominiums was completed in 2006. In 2008, it was discovered that residual concentrations of petroleum related chemicals remained in the soil, soil gas, and groundwater beneath the development. Later that year, Signature revealed that the condominiums had been constructed with moisture barriers beneath the building slabs instead of the vapor/gas barriers called for in the corrective action plan.
Reprinted courtesy of
Omar Parra, Haight Brown & Bonesteel LLP and
Jesse M. Sullivan, Haight Brown & Bonesteel LLP
Mr. Parra may be contacted at oparra@hbblaw.com
Mr. Sullivan may be contacted at jsullivan@hbblaw.com
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Kumagai Drops Most in 4 Months on Building Defect: Tokyo Mover
June 11, 2014 —
Kathleen Chu and Kevin Buckland - BloombergKumagai Gumi Co. (1861), a Japanese construction company, fell the most in four months after saying an apartment complex it had built has defects.
The shares dropped 5.7 percent to 264 yen at the close of trading in Tokyo, the biggest decline since Feb. 4. Construction flaws in supporting pillars were found in the building completed in March 2003 in Yokohama City, south of Tokyo, the company said in a statement through the stock exchange today. The residents have been asked to relocate to temporary shelters and further investigation is required, it said.
“This is a big negative for Kumagai’s reputation and it may hurt the company’s future earnings,” said Yoji Otani, an analyst at Deutsche Bank AG in Tokyo.
The latest defect comes after Mitsubishi Estate Co. (8802) said in March it will rebuild a residential complex, constructed by Kajima Corp. (1812), in central Tokyo, after defects were found. Mitsui Fudosan Co. (8801) said it would repair some parts of an apartment building in Kawasaki City after the builder Shimizu Corp. (1803) found cracks in the concrete of some columns in April.
Ms. Chu may be contacted at kchu2@bloomberg.net; Mr. Buckland may be contacted at kbuckland1@bloomberg.net
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Kathleen Chu and Kevin Buckland, Bloomberg
General Liability Alert: A Mixed Cause of Action with Protected and Non-Protected Activity Not Subject to Anti-SLAPP Motion
February 18, 2015 —
Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay – Haight Brown & Bonesteel LLPIn Baral v. Schnitt (filed 2/5/2015, No. B253620), the California Court of Appeal, Second Appellate District, held that California’s anti-SLAPP statute does not authorize the striking of allegations of protected activity in a cause of action that also contains meritorious allegations of non-protected activity not within the purview of the statute. In so holding, the court attempted to resolve, or at least add its voice to, the growing conflict among appellate districts on the issue.
A SLAPP lawsuit (Strategic Lawsuit Against Public Participation) seeks to chill or punish the exercise of constitutional rights to free speech and to petition the government for redress of grievances. California’s Legislature enacted the anti-SLAPP statute to permit a defendant to file a special motion to strike as to any cause of action that arises out of an act in furtherance of such rights. In Baral, the plaintiff alleged that his business partner had violated fiduciary duties in usurping the plaintiff’s ownership and management interests in their jointly owned company, so that the defendant could benefit from a secret sale of the company. The complaint alleged that the defendant hired a public accounting firm and prevented the plaintiff from participating in its investigation in order to force the plaintiff's cooperation of the sale of the company. The defendant filed an anti-SLAPP motion, seeking to strike all references to the accounting firm's audit. The trial court denied the motion, on the ground that the anti-SLAPP statute applies to causes of action, not allegations.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Valerie A. Moore,
Lawrence S. Zucker II and
Blythe Golay
Ms. Moore may be contacted at vmoore@hbblaw.com.
Mr. Zucker may be contacted at lzucker@hbblaw.com.
Ms. Golay may be contacted at bgolay@hbblaw.com.
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NY Project Produces America's First Utility Scale Wind Power
December 23, 2023 —
Debra K. Rubin - Engineering News-RecordDespite financial gyrations in the U.S. offshore wind energy market that have caused project delays and cancellations over the past two years, America now has joined other world nations in having energy generated for the first time from a utility-scale facility.
Reprinted courtesy of
Debra K. Rubin, Engineering News-Record
Ms. Rubin may be contacted at rubind@enr.com
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