Articles Posted in Construction Generally

Recently, the California Court of Appeal for the Fourth Appellate District, in Womack v. Lovell, et al., Case No. G409587 (June 5, 2015), reversed a judgment in favor of the homeowner, noting that “[t]he devil isn’t the only resident in the details; sometimes truth and fairness lodge there as well.” The Court of Appeal, holding the homeowner to his judicial admission that the general contractor was licensed, concluded that the homeowner’s judicial admission coupled with his failure to comply with the local rule requiring identification of all controverted issues warranted a ruling in the contractor’s favor. This ruling serves as a reminder to contractors to diligently seek a verified certificate of licensure from the California Contractors State License Board (CSLB) if their licensure may be a controverted issue in a dispute because it may take the CSLB several months to issue the certificate.

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DECEMBER 9, 2015 UPDATE:  Today, the Central District Court its Order Granting Defendant’s Motion to Dismiss in Barber v. Nestle USA, Inc., et al., No. SACV 15-01364-CJC(AGRX), concluding that “Plaintiffs’ claims are barred by the safe harbor doctrine and therefore declines to reach the remainder of Nestlé’s arguments.” Nestlé successfully argued that “a safe harbor from Plaintiffs’ state law claims was created by the California Transparency in Supply Chains Act of 2010 (“Supply Chains Act”), Cal. Civ. Code § 1714.43.”  This is an important issue for retail sellers and manufacturers subject to the Supply Chains Act.

UPDATE: We invite in-house counsel to join Amy and Robert at the upcoming conference. In-house counsel that are new registrants may use the code PILLSBURYVIP, subject to approval by the ALM Events Team.

Please join Amy Pierce and Robert Wallan at the West Coast General Counsel Conference on November 17 at Hotel Nikko in San Francisco for the panel discussion Social Consciousness – Not Just for the Millennials.

Under the California Transparency in Supply Chains Act of 2010, since January 1, 2012, every retailer, seller and manufacturer doing business in California and having annual worldwide gross receipts that exceed $100 million has been required to disclose on its website its efforts to eradicate slavery and human trafficking from its direct supply chain.

Even if you have disclosed your efforts and self-certified your compliance with the Act, you may still be required to defend your efforts and, for that matter, your supply chain in 2015 and beyond.

We will be discussing the Act and litigation exposure created by this “shaming” statute.

Additional Source:  These Lawyers Want Slave Labor Warnings on Your Cat Food (December 11, 2015); Compliance Alert: California’s Transparency in Supply Chain Act of 2010; California Transparency in Supply Chains Act

Photo:  Debs (ò‿ó)♪, Shiny! (Creative Commons)

In Lacey Act Lessons from the Lumber Liquidators $13 Million Settlement, Pillsbury attorneys William Sullivan and Benjamin Cote explore the ramification of Lumber Liquidators’ agreement to plead guilty to five criminal charges, including one felony, stemming from its purchase and import of certain wood products through three separate Chinese suppliers. Among other things, the plea agreement marks the first criminal conviction of a major U.S. company under 2008 Lacey Act amendments that expanded the reach of the wildlife protection statute to wood products sourced from foreign countries.

Wondering if your company qualifies for a partial sales and use tax exemption on equipment purchases and leases? The California Contractors State License Board is inviting manufacturers, research & development companies, construction contractors, retailers of construction materials and everyone else to join it for a FREE webinar:  Manufacturing and Research & Development Sales Tax Exemption Webinar on Wednesday, October 21, 2015, from 11: a.m. to 12:00 p.m. PST.  It tempts everyone to consider that they may qualify for a partial sales and use tax exemption on equipment purchases and leases. To register for the webinar, go to www.boe.ca.gov/webinars or call (844) 829-8353. The CSLB is asking everyone to register by October 20, 2015.

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Some of the current Justices sitting on the U.S. Supreme Court have written that they are dissatisfied with the state of the law regarding the deference the courts must accord to a federal agency’s interpretation of its own regulations. A workplace safety case decided on October 13, 2015, by an en banc panel of the U.S. Court of Appeals for the Eighth Circuit may provide a vehicle for the U.S. Supreme Court to review these issues. The issue of what deference to apply in these situation arises from the U.S. Supreme Court’s decisions in Bowles, et al., v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) and Auer, et al., v. Robbins, et al., 519 U.S. 452 (1997); these cases have been interpreted as granting federal agencies “substantial deference” when the courts are asked to review an agency’s interpretation of its own rules. However, the growth and reach of the federal government plainly concern some of the Justices, and if there is to be a case at hand to sort through these issues, then Perez, Secretary, U.S. Department of Labor, v. Loren Cook Company may be the case to do this if the government chooses to appeal.  There appears to be a trend that courts are paying very close attention to the text of the law, and less to what the agency says the law actually means in the eyes of the agency, especially when the agency is arguing that the Congress provided the agency with boundless power and discretion.

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The California Labor Commissioner now has more power to enforce  minimum wage requirements and to collect payment for wage-related claims. California Governor Brown’s website confirmed Saturday that he has signed into law special provisions permitting the Labor Commissioner to, among other things, file a lien or levy on an employer’s property in order to assist an employee in collecting unpaid wages-related judgment. The Labor Commissioner has this power regardless of whether the judgment is entered in its favor or in favor of the employee. In addition, if a final judgment against an employer is unsatisfied, as required by the new law, the employer will not be permitted to continue to conduct business in California unless the employer has obtained a bond from a surety company and has filed a copy of that bond with the Labor Commissioner. Contractors beware, the bottom line is that you will not be able to ignore wage-related judgments without potentially significant consequences.

Additional Sources:  Senate Bill 588 (De León)

States that require a person that engages in work requiring a contractor’s or specialty contractor’s license generally include within their licensing law an express provision making it unlawful to advertise for work requiring a contractor’s license unless the person, in fact, is property licensed.  Many states’ licensing laws also require a licensed contractor to include its license number in any advertising.  Starting October 1, 2015, Section 624.720(2) of the Nevada Revised Statutes requires any person not licensed pursuant to Nevada’s contractors’ licensing law, Chapter 624 of the Nevada Revised Statutes, who advertises to perform or complete construction work or a work of improvement to affirmatively state in the advertisement that he or she is not licensed pursuant to Chapter 624.  Licensed contractors should also be careful not to advertise for work that exceeds the scope of their contractor’s or specialty contractor’s license.

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National Fire Prevention Week commemorates the Great Chicago Fire of 1871.  Over the course of two days, the fire reportedly killed more than 250 people, left 100,000 homeless, destroyed more than 17,400 structures and burned more than 2,000 acres.  On June 1, the National Fire Protection Association announced  “Hear the Beep Where You Sleep: Every Bedroom Needs a Working Smoke Alarm” as the theme for this year’s Fire Prevention Week campaign.  With this theme, its goal is to better educate the public about NFPA 72, National Fire Alarm Code®, which requires a smoke alarm in every bedroom, outside each sleeping area and on every level of the home (referred to as the “‘sleepy’ smoke alarm requirement”).   On October 2, President Oba proclaimed October 4 through October 10, 2015, as Fire Prevention Week.

Additional Sources:  National Fire Protection Association, About Fire Prevention Week