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Blog|June 17, 2024

Legal Advisory Committee Q2 Newsletter

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 second quarter of 2024, we held three LAC meetings where three MCLE (legal continuing education) presentations, two case laws, and one Caltrans update 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.

LAC Retreat

Join us for a full weekend of education, dynamic discussions, and solid networking as we travel to Southern California for our 2024 Legal Retreat at the Lodge at Torrey Pines. Gain knowledge around some of the industry’s leading issues while enjoying the resort atmosphere.

We will have educational presentations on “Dispelling the Top Myths About Construction Arbitration”, “Privacy and Cyber Security Concerns for Construction Companies”, “Trending Issues in Construction Insurance”, “Overview of indemnity and defense issues in subcontracts 10 years after Cal. Civ code 2782.05 became effective”, “The Art of Cross Examination”, and more! There will be an opportunity to earn up to six CLE credits.

Additionally, there will optional activities to golf at Torrey Pine’s South golf course which contains stunning and exclusive views right at the water’s edge; or to see horseracing at the Del Mar Racetrack accompanied with light food and cocktails.

Lastly, the LAC Retreat would not be possible without the generous contributions of our sponsors. We have several sponsorship packages available, several of which include tickets to the event and the Del Mar racetrack. To learn more about our sponsorship opportunities, please contact Mary Alyssa Rancier at rancierm@agc-ca.org.

To register for the LAC Retreat, please click here.

Presentations from LAC Meetings

April

MCLE: “Overview of Individual Liability for Labor Code Claims, Including PAGA and Wage Theft”

On April 9, 2024, attorney Paul V. Simpson gave a presentation to the AGC Legal Advisory Committee on provisions of California law that now expose owners, officers, and other key employees to potential personal liability for Labor Code violations of their corporation or limited liability business.  Mr. Simpson explained that historically an employee in California could not recover damages for wage and hour violations from an individual owner, officer, or managing agent of a corporation or limited liability company unless the employee could prove some other legal basis for liability such as alter ego liability. However, in 2016 Labor Code Section 558.1 became the law.

As a result of these laws a business bankruptcy or insolvency does not insulate key individuals from personal liability for monetary damages and attorney fees. If individual civil liability exposure was not enough  to concern owners, officers , an managing agents, in 2022 Penal Code Section 487m Section  was signed  into law making the “intentional theft” of wages in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate from two or more employees, by an employer in any consecutive 12-month period may be punished as grand theft. What constitutes an “intentional theft of wages” is yet to be explained by the courts.

Paul Simpson, Simpson, Garrity, Innes & Jacuzzi, PC

Paul V. Simpson is a founder and President of Bay Area based labor and employment law boutique. Mr Simpson has counseled and litigated on behalf of California businesses for more than 40 years. His vast knowledge of the challenging legal landscape confronting California employers is utilized to provide clients with litigation avoidance solutions to complex human resource problems, as well as effective strategic litigation defense services. Mr. Simpson has defended employers in state and federal trial courts in wage and hour class actions and PAGA civil penalty cases, as well as single plaintiff civil lawsuits and administrative matters ,including NLRB cases.  In 2021 Mr.  Simpson successfully represented a public works contractor in a precedent setting prevailing wage coverage case before the California Supreme Court in the case of Mendoza et v. Fonseca McElroy Grinding Co. 11 Cal 5th 1118 (2021).

Case Law: “Huerta v. CSI Electrical Contractors (2024) Cal. LEXIS 1446*”

This case involves a class action labor claim on behalf of construction workers claiming the contractor/employer CSI Electrical Contractors (“CSI”) owes them unpaid wages for hours worked.  “Industrial Welfare Commission (Wage Order No. 16) governs wages, hours, and working conditions in the construction, drilling, logging, and mining industries.”  Huerta at 1-2.  Plaintiff Huerta alleges that (1) the time spent waiting at the security gate entrance to the construction site amounted to compensable hours worked; (2) the time spent commuting from the security gate entrance to the workers’ parking lot amounted to compensable time; and (3) the unpaid meal period where he was restricted from leaving the jobsite and required to remain at a designated onsite lunch area amounted to compensable hours worked.

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. 

May

MCLE: “The art and science of storytelling and visualization in construction litigation”

In this presentation, the speakers – an experienced technical expert and a seasoned construction attorney – discussed the use of storytelling and visualization in forensic investigations and construction litigation from the technical and legal perspectives. The presentation highlights common technical applications in which visuals can be helpful, the process of creating graphics, as well as some legal considerations, including when to use graphics, rules of evidence, and best practices when using demonstratives in construction disputes.

Some of the key takeaways included:

  • Start early in your case preparation to determine the story you need to tell and work with a consultant to help design the right graphics that will support and explain the narrative.
  • Know your audience and what information will be useful to their understanding of the issues.
  • Know what story you need to tell and be creative in what and how you use graphics to help experts share in the storytelling process.
  • A picture is worth 1,000 words… An animation may be even better.
  • Be sure to plan well in advance, know what foundation you will need for your graphics and prepare to have testimony or other evidence demonstrating that the visual aid is a fair representation of the underlying witness testimony or other evidence and relates to a piece of admissible substantive proof.
  • Practice makes perfect – don’t rely on your technical experts to know how to tell the story you need.
  • Be cognizant that your graphics do not get too far into the details: Don’t lose the forest for the trees – or the leaves!

Thanh Do, Thornton Tomasetti

Dr. Thanh Do is an experienced structural failure analyst, forensic investigator, and technical storyteller. Dr. Do obtained his Ph.D. in structural engineering and mechanics at University of California, Berkeley, where he went on to serve as an Adjunct Professor teaching structural engineering courses. He is currently a structural engineer with Thornton Tomasetti’s Forensics practice and leads the firm’s Forensic Visualization group, which produces trial graphics and physics-based animations for construction litigation. Thanks to his academic background and unique experience, Dr. Do’s expertise blends the “art” and the “science” in forensic engineering and technical storytelling, making him a standout technical expert.

Specializing in Design-Build project delivery, collapse investigations, standard of care assessment, construction/design defect evaluations, Dr. Do supports attorneys, insurance professionals, general contractors, and design professionals in identifying failure root causes resolving construction disputes. His talent also lies in crafting compelling narratives through storyboards to enhance technical storytelling. As a licensed Professional Engineer, Dr. Do is well-versed in the design of new structures and retrofit of existing structures under extreme loading conditions, including earthquake, wind, and tsunami.

Beyond his engineering work, Dr. Do is a frequent speaker and writer on matters related to construction law, dispute resolution, risk mitigation, damage assessment, and advanced simulations of failures.

Brenda Radmacher, Akerman Law

Brenda Radmacher is a highly accomplished and respected lawyer who delivers exceptional results to her clients. As a distinguished litigation partner at Akerman LLP, a top 100 law firm with over 700 attorneys in 24 cities, Brenda possesses unparalleled legal knowledge and nearly 30 years of experience in construction law. She has successfully resolved complex disputes for construction companies, developers, design professionals, and owners through all aspects of the dispute resolution continuum. She also is sought after for drafting contracts and assisting in development transactions associated with the built environment, and serves as a mediator and arbitrator.

AGC of California Staff Presentation: “ Caltrans SBE Bid Preference – Notice of Non-Responsive Bidders”

Chris Smith, AGC of California

June

MCLE: “Mediation Impasse is a Fallacy: Strategies for Success”

Have you ever experienced the frustration of a mediation session that ends without resolution, leaving you (or your client) disheartened and questioning your choices? Join us for our transformative workshop, ” Mediation Impasse is a Fallacy: Strategies for Success,” designed to empower legal practitioners like you with the tools to navigate through mediation challenges effectively.

Drawing on the expertise of seasoned legal professionals, this one-hour session addresses the root causes of impasse in mediation and provides practical strategies to avoid running into them in your negotiations and mediations. Through interactive discussions and real-life case scenarios, participants will learn how to:

  1. Identify common causes of impasse and proactively address them during the mediation process.
  2. Learn how to front-load the process in order to uncover potential barriers to success, and avoid surprises in your mediations.
  3. Enhance communication techniques to manage expectations and emotions effectively.
  4. Develop negotiation techniques to navigate through deadlock situations and achieve favorable outcomes.
  5. Collaborate with mediators to create a conducive environment for productive negotiations.

Don’t let impasses derail your mediation efforts and leave you feeling defeated. Join us as we equip you with the skills and insights needed to turn mediation challenges into opportunities for success.

Lee Jay Berman, The Mediation Offices of Lee Jay Berman

Lee Jay Berman began as a full-time mediator 29 years ago, and has successfully mediated over 2,700 matters as, many of which were high profile cases, as a private, independent commercial mediator. Chambers USA ranks him among the top commercial mediators in the U.S. annually since 2017, and recently Band 1, among the top 13 in the country. He has been voted by his colleagues into the Who’s Who of International Commercial Mediation from 2012-2023, and they named him one of the 10 Global Thought Leaders in North America. ADR Times named him to their inaugural “Who’s Who in ADR”. The Association of Media and Entertainment Counsel honored him with their 2024 Counsel of the Year Award for Excellence in ADR. The National Academy of Distinguished Neutrals (NADN) named him their inaugural “Distinguished Neutral of the Year” in 2017. California’s Daily Journal twice named him “Top Neutral”. The Southern California Mediation Association has honored him with both their Cloke-Millen Peacemaker of the Year (2021) and L. Randolph Lowry Award (2010) for his work as a mediator, trainer, and thought leader in the field. He is a AAA Master Mediator for employment matters, a national panelist on their commercial, construction and entertainment panels, and a select mediator on their International Center for Dispute Resolution mediation panel. He is a Distinguished Fellow with the International Academy of Mediators, a Charter Diplomat with NADN, and was one of the first 5 U.S. mediators certified by the International Mediation Institute.

Case Law: “Diaz v. Macys West Stores, Inc.”

Diaz sued her employer for her individual Private Attorneys General Act (“PAGA”)  and other employees’ claims (“non-individual PAGA claims”).  The parties’ arbitration agreement provided for arbitration of Diaz’s own PAGA claims, but precluded arbitration of consolidated claims of different employees and class or collective actions.  The district court relied on a U.S. Supreme Court case (Viking River Cruises, Inc. v. Moriana), which differentiated “non-individual PAGA claims” from “class actions,” thus, compelling arbitration of all of Diaz’s PAGA claims.  Relying on Viking River Cruises, Macy’s appealed, arguing the non-individual PAGA claims were precluded by the arbitration agreement and should be dismissed.

The California Supreme Court corrected the U.S. Supreme Court’s misapplication of PAGA in Adolph v. Uber Technologies, Inc.  The 9th Circuit held that (1) when entering into the arbitration agreement, the parties intended only to arbitrate claims related to Diaz’s own employment; and (2) Diaz became an aggrieved employee with standing to pursue non-individual PAGA claims once Macy’s violated the Labor Code.

This Court agreed that the non-individual PAGA claims were non-arbitrable, but disagreed with Macy’s on the dismissal of the non-individual PAGA claims holding that these claims should be pursued in another forum because Diaz’s standing was not impacted by the arbitration of her own claims.

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.

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