Blog|March 12, 2024

LAC Q1 2024 Newsletter

During the first quarter of 2024, our Legal Advisory Committee (LAC) held three Board meetings where three MCLE (legal continuing education) presentations and three case laws were presented. We also launched a Construction Law Series where members of our committee presented AB 594 and AB 334. We urge all member companies, particularly those with general counsel on staff, to join the LAC to network and discuss pertinent construction industry issues. Law professionals of our contractor or specialty contractor members can now join the LAC for free! If you are interested in joining or learning more about the LAC, contact Mary Alyssa Rancier, Policy Manager, at rancierm@agc-ca-org.

Our Legal Advisory Committee (LAC) is made up of an exceptional mix of legal firms, in-house counsel, and forensic accountants, that works to understand the impact of new laws, regulations, and judicial decisions. During the first quarter of 2024, we held three LAC Board meetings where three MCLE (legal continuing education) presentations and three case laws were presented. We urge all member companies, particularly those with general counsel on staff, to join the LAC to network and address pertinent construction industry issues. Legal professionals of our contractor or specialty contractor members can now join the LAC for free! You must be a member of AGC of California as a contractor or specialty contractor to qualify. If you are interested in joining or learning more about the LAC, contact Mary Alyssa Rancier, Policy Manager, at rancierm@agc-ca-org.

BuildSmart Program: Construction Law Series

AGC of California recently launched a new training and development series that aims to educate contractors about recent legal changes that impact the industry. During the first quarter of 2024, we held two educational webinars:

AB 594: Navigating Labor Code Complexities & Alternative Enforcement Strategies in Commercial Construction

On February 22, 2024, Robert Roginson of Olgetree Deakins took a deep dive into AB 594, and provided insights into how it impacts contractor’s business operations and the broader construction sector in California.

Key topics that were discussed include understanding the specific provisions of AB 594, how it alters existing labor laws, and its implications for project management and workforce regulations. We’ll also explore innovative enforcement strategies, ensuring compliance while maximizing efficiency and profitability.

2024 Legislative Day & PAC Fundraising Dinner

Join AGC of California for a special opportunity to forge relationships with the state’s most dynamic political leaders.

This year’s Legislative Day Reception and separate ticketed AGC Fundraising Dinner will be taking place at Camden Spit & Larder on the evening of May 7. Participants will enjoy a private sit-down dinner with the elected officials who influence and champion California’s construction industry. The annual AGC-CA PAC Fundraising Dinner is truly a unique opportunity, as AGC of California members often enjoy two or more legislators per table! Along with building relationships with these leaders, your contribution to the AGC-CA PAC supports one of the most important tools AGC of California wields when representing the political interests of the California contractor.

Your registration for the AGC-CA PAC Fundraising Dinner includes access to our annual Legislative Day on May 7 and May 8. On May 8, registrants will participate in Capitol office visits as AGC-CA members advocate for key legislative issues impacting construction and your business’s bottom line. An initial agenda can be found here. Click here to register.

If you have questions, please contact Chris O’Connor, Vice President of Engagement and Legislative Affairs, at OConnorC@AGC-CA.ORG.

2024 Women Construction Owners & Executives – California Annual Conference

Join WCOE as they “Uncork Innovation & Harvest Growth” together, celebrating the remarkable 40th anniversary of WCOE, pioneers in paving the way for women in construction. This is a not-to-miss event that promises to be filled with networking, knowledge-sharing, and empowerment. Check out the link below for sponsorship details, and make sure to share this information with anyone who might be interested.

📅 DATE: June 17-18 (Monday/Tuesday)
📍 Location: Archer Hotel – Napa Valley 🍷

Please find Conference Details and Sponsorship Information here: http://www.wcoecalifornia.com/become-a-sponsor

For those of you who missed out on the 2023 WCOE Conference in San Diego or attending and want to reminisce, here is a video showcasing our amazing conference: here.

This is a not-to-miss event as WCOE celebrate the 40th anniversary of WCOE paving the way for women in construction.  WCOE builds your Contacts, Contracts, and Bottom Line.

 

Presentations from LAC Meetings

January

MCLE: “AGC Legislative Update”

Felipe Fuentes, The Apex Group

 

Case Law: “K&S Staffing Solutions v. Western Surety Co., No. C096705, 2024 WL 20035 (Cal. Ct. App. Jan. 2, 2024)”

In K&S Staffing Solutions v. Western Surety Co., No. C096705, 2024 WL 20035, at *1 (Cal. Ct. App. Jan. 2, 2024), the Court of Appeal for the State of California, Third Appellate District, determined that K&S Staffing solutions, Inc. was considered to be a “laborer” within the meaning of the mechanics lien law, and found that the payment bonds issued for two state projects were subject to mechanics lien law requirements. This decision provides a rare example of California courts departing from a statute’s plain language. The Court of Appeal instead looked at the legislative intent and historical application of mechanics lien laws, confirming that California mechanics lien laws apply generally to payment bonds required for state projects under Public Contract Code 7103, which is important because the Public Contract Code does not identify who can make a claim against the payment bond nor how such claims could be brought.

Nicole Wolfe, Smith Currie Oles LLP

Nicole is a senior associate attorney based out of the Seattle office of Smith, Currie & Oles. Nicole focuses her practice on construction litigation and government contracts work. She advocates for general contractors and subcontractors on a variety of issues, including insurance coverage, bid protests, and claims before the Armed Services Board of Contract Appeals and the Civilian Board of Contract Appeals. She also advises on employment and labor claims such as wage theft matters in legal procedures before the Seattle Office of the Hearing Examiner.

 

February

MCLE: “Help Me Help You: How to Prepare for a Mediation”

This presentation provided tips to construction attorneys on how to assist mediators in efforts to resolve construction disputes. They discussed the following:

  • Who your audience is when writing a mediation brief. The audience is not a judge but rather a mediator who is equipped to help in resolving cases.
  • What to include in a brief, such as prior settlement attempts, hinderances to settlement, as well as a list of all persons who will be in attendance.
  • Cutting and pasting excerpts of discovery, photographs, emails and other documentary evidence directly into the brief.
  • The pros and cons of sharing your brief with your opponent.
  • A pre-mediation phone call with the mediator.

Russell D. Cook, Mediator – Attorney at Law

Russell D. Cook has been in private practice for 43 years, with substantial experience in construction. He has successfully mediated over 900 cases including many mediations in construction and real estate. His experience in construction claims was on behalf of owners, general contractors, subcontractors, material suppliers and lenders. The types of matters that Russell D. Cook has been involved in include heavy road construction, as well as buildings (commercial, residential, governmental, hospitals and schools). Construction claims have dealt with construction defects, construction claims associated with subcontractors seeking additional funds for extra work, delay claims, cost overrun claims, liquidated damage claims, prompt payment claims, unlicensed contractor claims, prevailing wage and hour claims and others. Russell D. Cook is on the arbitration and mediation panels of the American Arbitration Association. He is certified as an MC3 Certified Mediator.

 

Case Law: “Epochal Enterprises, Inc. v. LF Encinitas Properties, LLC”

This case involves the lease of greenhouses and the concealment of asbestos.  This case analyzes (1) two lease provisions, Indemnification and Limitation of Liability, and (2) gross negligence as it pertains to the landlord’s actions and the elements to show gross negligence.  Another aspect, albeit minor, that this case discusses is the discretion of a trial court in granting a judgment notwithstanding the verdict.

Justin Gelzayd, SMTD Law

Justin Gelzayd focuses his practice on construction and surety litigation. Mr. Gelzayd’s professional experience includes litigating cases involving construction defects, contract and bid disputes, and forming corporations and LLCs. Mr. Gelzayd is licensed to practice law in California and Florida.  Before going to law school, Mr. Gelzayd earned an accounting degree from the University of Arizona. Mr. Gelzayd earned his J.D. and LL.M. from the University of Miami School of Law in 2016.

 

March

MCLE: “Daubert/Frye Motions in Construction Litigation & Dec. 2023 Revisions to Federal Rules of Evidence, Rule 702.”

Last December, for the first time since 2011, changes were made to the Federal Rules of Evidence, Rule 702 relating to the admissibility of expert opinion. The changes clarified existing law and were made in part to discourage courts from incorrectly admitting junk science under FRE 104(b), and to emphasize the court’s gatekeeping role in precluding such evidence.  In light of these revisions, expert challenges may be more frequent and more successful than in the past.

This presentation highlights the applicable federal and state standards for challenging expert evidence, reviews recent data on challenges to financial experts, FRE 702 and the federal standard, and the hybrid California approach.  Common reasons for disqualification of experts will be discussed, potential application to arbitration proceedings, and recommendations for challenging or surviving challenges to expert evidence.

Marc Coates, Pillsbury Winthrop Shaw Pittman LLP

Marc Coats focuses on resolving complex construction disputes, analyzing contractor claims, delay and disruption impacts, payment and procurement issues, as well as drafting construction contracts. Also, a California-licensed civil engineer, Marc is a member of the American Society of Civil Engineers and a LEED Accredited Professional.

Marc’s construction law practice is informed by 10 years of experience working as a construction manager and design engineer on public and private projects. He has advised clients on a wide range of legal issues relating to construction projects, including water and transportation infrastructure, utility-scale renewable energy facilities, and residential and commercial buildings. Marc has represented owners, general contractors and subcontractors, and has experience with international arbitration, mediation and litigation in federal and state courts.

Case Law: “Appeals of – McCarthy HITT – Next NGA West JV, ASBCA No. 63571, 2023 WL 9179193 (December 20, 2023)”

The United States Army Corps of Engineers (USACE) contracted with McCarthy HITT- Next NGA West JV (“McCarthy”) on a building for the National Geospatial-Intelligence Agency (“NGA” or “the Project”) in Missouri. The project spanned from 2019 to 2021 and experienced significant delays and additional costs due to the Covid-19 pandemic, including added requirements for testing, break areas, additional training, quarantine programs, and other Covid-related items, as well as increased costs due to inflation during the pandemic. McCarthy passed through three subcontractor claims at the end of the project, and the government moved to dismiss. The Board denied the motion to dismiss, stating that McCarthy had plausibly stated a claim on each of its causes of action and that the sovereign action affirmative defense did not apply at the motion to dismiss stage because McCarthy had plausibly alleged that at least some of the government’s actions on the Project site were not taken in the government’s role as a sovereign.

Emma Vanderweyst, Smith Currie Oles LLP

Emma Vanderweyst is an Associate with Smith Currie Oles in the Seattle office. She advises and represents construction owners, architects, engineers, general contractors, subcontractors and suppliers on both public and private projects. Handling a wide variety of matters, she drafts demand letters, motions and pleadings, reviews documents and contracts and closely analyzes the facts she uncovers.

With in-depth familiarity with Washington state law, Emma is well equipped to research and identify relevant statutes and regulations that reinforce clients’ cases. An excellent writer, she draws on her experience on the University of Washington Law Review and in her work as a writing coach when she was an undergraduate.

Subscribe and get our weekly newsletter in your inbox.

2024 Legacy Sponsors