Category: Construction

The ADA, the Unruh Act, and California’s Construction-Related Accessibility Standards Act

Post author By Mazzola Law Office P.C.
Post date February 8, 2014

Click here for the link to Part 1 of this Article dealing with the ADA or here for the link to Part 2 of this Article dealing with the Unruh Act and California’s Construction Related Accessibility Standards Act.

Commercial property owners are now required to notify lessees about their property’s compliance with accessibility standards. Civil Code Section 1938 now states: A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013 whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable standards pursuant to Section 55.53.

The top 10 complaints received by California Commission on Disability Access are:

1 Parking. Loading zones/van access aisles are not compliant or non-existent.
2 Parking. Existing parking spaces are not compliant.
3 Accessible Route and Entry. Routes to and from parking lots are not accessible.
4 Parking. A parking lot does not contain minimum number of accessible parking spaces.
5 Parking. Signage in parking lot is not compliant. e.g., parking spaces need to be designated as reserved by a sign showing the symbol of accessibility.
6 Access within Public Facility. Heights of surfaces such as counters, bars, or tables are not compliant.
7 Access within Public Facility. Access aisles within the building are not accessible. e.g., dining or work surfaces are not on an accessible route.
8 Toilet rooms/Bathrooms. Grab bars in bathroom are non-existent, or grab bars are not compliant.
9 Toilet rooms/Bathrooms. Lavatories and mirrors in bathroom are not accessible.
10 Accessible Route and Entry. Entry doors are not accessible.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering these issues.

ADA, Unruh Act Construction

The ADA, the Unruh Act, and California’s Construction-Related Accessibility Standards Act

Post author By Mazzola Law Office P.C.
Post date February 7, 2014

Click here for the link to Part 1 of this Article dealing with the ADA.

The Unruh Act is California’s state law equivalent of the ADA. The Unruh Act incorporates many provisions of the ADA, but there are some differences between the two statutes. As one major example, the Unruh Act provides for payment of damages to a plaintiff where the ADA does not allow for damages.

Another significant area of difference with the ADA is how the Unruh Act handles certain accessibility claims in public accommodations. The Construction Related Accessibility Standards Act was added to California’s Unruh Act in 2009 and was amended in 2012.

The Construction Related Accessibility Standards Act contains procedures that can help certain defendants avoid some of the turmoil and expense associated with a construction-related accessibility claim. An accessibility claim asserts that a defendant failed to adhere to statutory access standards of a business that is open to the public.

Some of the significant provisions of the Construction Related Accessibility Standards Act include:

• the establishment of the Certified Access Specialist program (CASp),
• a stay on some types of ADA litigation,
• limits on plaintiff attorneys sending pre-litigation “demands for money” letters • limits on stacking and milling of claims,
• reduced damages per violation,
• reduced attorney’s fees awardable to the plaintiff,
• requirements about providing specifics related to claims of being denied equal access to public accommodations

A CASp – A Certified Access Specialist (a CASp) is a person who has been certified by the State of California to assess the accessibility aspects of a business. If a public accommodation has been inspected and certified by a CASp, it may qualify for protections in litigation that are not otherwise available to a defendant.

Those protections include reduced damages, the ability to stay litigation, and an early settlement conference. A CASp should inspect all new construction and is also available to review and advise on existing accommodations to determine if they meet the access standards.

Stay on Litigation – If a business is CASp certified, it may be entitled to stay an accessibility lawsuit for 90 days and request early evaluation conference. Small businesses having less than 25 employees and falling below a certain gross revenue target over the preceding three years may also qualify for a stay on litigation if they promptly address the access concerns.

Demand Letters – A plaintiff attorney’s demand letter must now include the attorney’s State Bar number, a written advisory of rights and responsibilities, and list the facts that are reasonably necessary to identify the violations, all barriers encountered, how the barriers interfered with the plaintiff’s access, and the dates when the violations were encountered. The plaintiff’s attorney must also simultaneously send the demand letter to the California State Bar.

Stacking and Milling – The Construction-Related Accessibility Standards Act limits stacking and milling of claims. Stacking occurs when plaintiffs claim that they encountered access barriers on multiple occasions at the same location, thereby multiplying the statutory damages by the number of visits. Milling arises when an attorney brings virtually identical claims for the same plaintiff against multiple businesses.

Attorney’s fees – Attorneys fees are available when a plaintiff encountered violation or was deterred from public accommodations due to them. When determining the amount of reasonable attorney’s fees that can be awarded to a prevailing plaintiff, a court may now consider settlement offers made and rejected. This has the tendency to make plaintiff’s attorneys more reasonable in their demands.

The protections of the Construction-Related Accessibility Standards Act may not apply to ADA litigation venued in the federal courts.

Click here for the link to Part 3 of this Article dealing commercial property disclosures and common accessibility complaints.

ADA, Unruh Act Construction

The ADA, the Unruh Act, and California’s Construction-Related Accessibility Standards Act

Post author By Mazzola Law Office P.C.
Post date February 5, 2014

The Americans with Disabilities Act (ADA) is the federal law that requires all people receive full and equal access to public accommodations. Title Ill of the ADA prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public accommodation.

Public accommodations are defined as goods, services and privileges that are made available to the public. The ADA established requirements for twelve categories of public accommodations, which include:

• shopping malls,
• stores,
• restaurants,
• bars,
• service establishments,
• theaters,
• hotels,
• recreational facilities,
• private museums and schools,
• doctors’ and dentists’ offices,
• and other businesses.

Nearly all types of businesses that serve the public are included in the twelve categories, regardless of the size of the business or the age of their buildings. Commercial facilities, such as office buildings, factories, warehouses, or other facilities that do not provide goods or services directly to the public are nevertheless subject to the ADA’s requirements when they undergo construction and alterations.

The ADA requires removal of barriers to accessibility when it is “readily achievable” to do so. Readily achievable has been defined as “easily accomplishable without much difficulty or expense.” This requirement is based on the size and resources of a business. In determining whether an action is readily achievable, courts have considered the following factors:

• the nature and cost of the action needed to remove the barrier,
• the overall financial resources of the site involved,
• the fiscal relationship of the site in question to any parent entity,
• the overall financial resources of the parent entity.

Why is ADA compliance important for California business owners? California has 12% of the American population, but 40% of the ADA related litigation.

Click here for the link to Part 2 of this Article dealing with the Unruh Act and California’s Construction Related Accessibility Standards Act.

Construction Mechanic's Liens Stop Notice

Changes to Mechanics Lien laws in 2012 – Part 2

Post author By Mazzola Law Office P.C.
Post date March 5, 2013

Two of the most commonly used remedies available to contractors are mechanics liens and stop payment notices. The rules and procedures affecting mechanics liens, stop payment notices and bond claims changed on July 1, 2012 (SB 189).

An earlier blog dealt with changes to these laws that took place in 2011. Part 1 of this blog for changes that took place in 2012 can be found here.

The following information is meant as general information only. One should not use this information to calculate the timing deadlines of these procedures. It is essential to take into account the specific facts and circumstances of each situation because they affect the timing, notice, and procedures. If the circumstances in this blog pertain to you or your company, contact our office to obtain advice on how to use them.

Stop Payment Notice – When there is a discrete sum of undisbursed construction funds, a contractor may file a Stop Payment Notice. Upon receipt of a Stop Payment Notice, the owner or construction lender holding the funds is required to sequester “sufficient funds” to pay the claimed amount. This has the effect of tying up those funds pending resolution of the matter. On a private works project, a contractor must obtain and serve a bond to require the lender to withhold the money claimed in a Stop Payment Notice.

Release of Lien/Waiver – During a construction project, it is good practice to use periodic lien releases to account for the sums requested and paid to contractors and subcontractors. This is done through the use of the Conditional and Unconditional Waiver and Release forms. The new language of these forms must be used as of July 1, 2012.

Release Bond – In the event a mechanics lien is recorded against a property, a Release Bond can be obtained. The amount of the release bond was been decreased from 150% of the lien amount to 125%.

Removing an Invalid Mechanics Lien – A contractor that records a mechanics lien may have up to 90 days to file a foreclosure lawsuit. Depending on the particular factual circumstances and whether a Notice of Completion was appropriately recorded, it may be less than 90 days. Failing to institute a timely foreclosure lawsuit results in the mechanics lien (or other similar remedy) becoming invalid. However, even an invalid lien may cause the property owner difficulty when it comes time for refinancing or sale.

A property owner may file a Petition to Expunge to remove an erroneous lien filed against the property. In the past, the amount of attorney’s fees that could be awarded in an action to remove the erroneous lien (a cloud on the property’s title) was capped at $2,000. With the changes in 2012, the cap no longer exists. Now the prevailing party may be awarded reasonable attorney’s fees. However, a demand must first be made by the owner instructing the contractor to remove the erroneous lien.

Notice of Completion – The time period for recording the Notice of Completion has been extended from 10 days to 15 days. Under certain circumstances, multiple Notices of Completion can now be recorded. This means that direct contractors (multiple prime contractors to the owner) have to be particularly careful with regard to when they take action to protect their interests.

The definition of Completion of a private works project has been revised to eliminate an owner “accepting” the work as an act that triggers completion. Completion of a private project now occurs upon:
1) actual completion,
2) occupation or use by the owner together with the cessation of labor,
3) cessation of labor for 60 continuous days, or 4) recordation of a notice of cessation after labor has ceased for 30 days. Completion of a public works project may still include when the public entity “accepts” the work or upon cessation of labor.

Notice of Lender – When a construction lender is involved in a project, contractual notice of the name and address of the lender must be provided to contractors and subcontractors. The owner must also provide this information to everyone that served a Preliminary Notice if the lender came onto the project after commencement.

Notice of Pendency of Action – Once a foreclosure lawsuit has been filed, a Notice of Pendency of Action must now be recorded within 20 days.

Notice of Non-Responsibility – When a tenant contracts for construction services, the owner of the property may wish to notify a contractor working on the project that it disclaims responsibility for the work. It may do so through a Notice of Non-Responsibility.

Construction Mechanic's Liens Stop Notice

Changes to Mechanics Lien laws in 2012 – Part 1

Post author By Mazzola Law Office P.C.
Post date February 28, 2013

Construction contractors have enhanced collection remedies to help them obtain payment. Two of the most commonly used remedies are mechanics liens and stop payment notices. These rights are based on the California Constitution and various statutes.

On July 1, 2012, the rules and procedures affecting mechanics liens, stop payment notices and bond claims changed (SB 189 and 190). New forms and procedures are required. A prior blog dealt with other changes to these laws that took place in 2011.

A Mechanics Lien allows a contractor to record a lien against the property that the contractor improved, giving the contractor a source from which to satisfy a judgment. A Stop Payment Notice (previously called a stop notice) enables a contractor to force an owner or a bank to set aside undisbursed construction funds held by them. Contractors are required to follow procedures to perfect their mechanics lien claim, stop payment notice rights, and bond claims, some of which are described in this blog. Failure to do so will result in waiver of those rights.

Preliminary Notice Enforcing contractor rights begins with the Preliminary Notice. The Preliminary Notice reaches backwards for 20 days and lays claim to the services, supplies, and materials provided by the contractor to the work of improvement. The Preliminary Notice form was revised in 2012 to distinguish between public and private projects.

At the start of every construction project, a contractor that does not have a direct contract with the project’s owner must serve a Preliminary Notice. This is necessary to preserve their mechanics lien claim, stop payment notice rights, and bond claims. Not only is it a required first step, failure to give a Preliminary Notice constitutes grounds for discipline under the Contractors’ State License Law.

The Preliminary Notice must be served on certain parties involved in a construction project. Failure to properly serve it will result in the loss of mechanics lien, stop payment notice, and bond rights. It is also imperative to preserve proof of compliance with the service requirements.

The rules for service of the Preliminary Notice depend on a number of factors. As one example, even when a contractor has a direct contract with the owner, the contractor must still give a preliminary notice to the construction lender. A Preliminary Notice must be served on the bond company. The service requirements for the Preliminary Notice are too variable to fully address in this summary. Consult this office for assistance.

This blog is continued in Part 2.

Construction Construction Defects Indemnity and Defense

An Immediate Duty to Defend in a Construction Contract, Even When there is No Fault

Post author By Mazzola Law Office P.C.
Post date November 23, 2011

The California Supreme Court issued an important decision about the duty to indemnify and defend arising out of a construction contract. In Crawford v. Weather Shield, (decided 7/2008) Weather Shield (WS) manufactured and supplied windows on a large residential construction project to developer / general contractor, J.M. Peters (JMP).

The subcontract between WS and JMP provided two important and distinct rights, indemnity and defense. WS owed JMP indemnity that obligated it to repay JMP if WS’s work was defective. WS also owed JMP a defense against lawsuits “founded upon…[a] claim of such damage…growing out of the execution of [WS’s] work.”

The homeowners in a large residential project sued JMP, alleging among other things, defects in the design, manufacture, and installation of the windows. Thus, as the window manufacturer and supplier, WS’s work was directly implicated in the homeowners’ complaint. JMP cross-complained against and tendered its defense and indemnity to WS.

WS refused to defend or indemnify JMP. WS contended that its windows were not defective and therefore it did not owe JMP a duty to defend it in the underlying lawsuit. After some of the parties settled, the remainder of the case went to trial.

At trial, the jury found that WS was not negligent in the defects. After that result, one would think that WS was justified in its refusal to defend JMP. However, as it turned out, they were not.

The case relating to whether WS owed JMP a duty to defend it was then tried by the judge because it was a matter of legal interpretation. The judge found that WS breached its contract by refusing to defend JMP, even though its windows were not determined to be responsible for the problems alleged by the homeowners.

The California Supreme Court upheld the decision of the trial court. It ruled that WS owed JMP an immediateduty to defend JMP because of the specific language in the subcontract. The Court analyzed Civil Code 2778 and the duties arising from an indemnity agreement. It found that the duty to defend was not dependent upon a finding that WS was liable for the construction defects. Instead, because the parties tied the duty to defend “founded upon” a claim relating to WS’s work, their agreement contemplated an immediate duty to defend when JMP was sued. The Court disapproved other court decisions that gave WS good reason to believe it did not have an immediate duty to defend.

A similar result was reached in UDC-Universal Development v. CH2M Hill (decided 1/2010). The subcontractor there was also determined not to be negligent, but was still found to be in breach of contract for not defending the general contractor.

Indemnity and defense duties are complex and fact specific. There are also particular restrictions on what kind of indemnity can be given in construction agreements. The points described here are general and should not be applied to your situation without consulting an attorney. Contact this office to discuss the meaning and scope of indemnity provisions in your contracts.

Construction Mechanic's Liens

Mechanic’s Lien Laws Changes for 2011

Post author By Mazzola Law Office P.C.
Post date January 7, 2011

When a construction contractor (including subcontractors, material suppliers, etc.) is not paid for its work, the contractor is entitled to record a mechanic’s lien against the private property where the work was performed. The mechanic’s lien secures the contractor’s right to payment against the real property that was improved by its labor. This greatly improves the contractor’s ability to collect payment for its work.

Beginning January 1, 2011, construction contractors that are entitled to record a mechanic’s lien must follow a few new procedures. In addition to the former requirements of recording a mechanic’s lien and timely filing a lawsuit to foreclose the lien, contractors must now give a statutory Notice of Mechanic’s Lien to the owner of the property. They must also complete a proof of service proving that they served the Notice. Additionally, once a foreclosure suit is filed with the court, the contractor must record a Notice of Pendency of the Proceedings with the County Recorder within twenty days.

A construction contractor’s failure to follow these new procedures will result in the mechanic’s lien being unenforceable, which is a steep penalty. Although that would not cancel the underlying debt owed to the contractor, it would mean that the contractor has lost a helpful mechanism in its collection efforts.

The reason for the new requirements makes good sense. Previously, some private property owners were unaware of a payment dispute between the general contractor and its subcontractors until they received a subcontractor’s lawsuit to foreclose on the property. This was often after the owner had fully paid the general contractor and the project was completed. By requiring construction contractors to provide the Notice to the property owner at the time the mechanic’s lien is recorded, the laws mandate that both sides know of the payment dispute in a timely manner. This may give them time to negotiate a resolution before a lawsuit is filed.

The changes also prevent the circumstance that plagues private property owners who are trying to sell or refinance their property, only to discover a mechanic’s lien was recorded against the property many years ago. While those mechanic’s liens are invalid if they were not foreclosed within 90 days of being recorded, the property owner may still run into trouble. Escrow companies often refuse to close escrow until all mechanic’s liens are resolved, even if the liens have expired. In that event, a construction attorney’s assistance is often helpful in quickly resolving the problem.

UPDATE: Mechanic’s Lien Laws changed again in July 2012. Review these updated blogs for the changes.