Holiday 2011

There are many new laws passed each and every year. Following are just a few that we felt deserved mention at this time:

AB 456, effective January 1, 2012, makes slight changes to the Notice of Mechanics Lien that is required on the Mechanic's Lien per Civil Code section 3084.

SB 944, effective January 1, 2012, changes the notice "Information about the Contractors' State License Board (CSLB)".

SB 459, effective January 1, 2012, amends the Labor Code with respect to independent contractors as well as changing the penalties and disciplinary actions against a contractor for purposefully misclassifying an employee as an independent contractor.

SB 189 / SB 190 effective July 1, 2012, has many small but significant changes.

• The largest change is the recodification of the statutes that pertain to Mechanic's Lien, Stop Notice and Payment Bonds, as well as other means for contractors to recover.
• New language for the Lien Releases and Waiver of Lien Rights is required.
• The Notice to Property Owner on the private works Preliminary Notice will change.
• Some key definitions have also been changed; for instance, a Stop Notice will soon be known as a Stop Payment Notice.
• The number of days within which an owner has to record a Notice of Completion is increased to 15 days.
• A direct contractor will have 21 days within which to pay the subcontractor on a project performed for a public utility.
• Acceptance would no longer be a condition of completion on a private works job.
• The Notice of Mechanics Lien language on contracts will change as well as a few other provisions or attachments.

 

Now is the accepted time to make your regular annual good resolutions. Next week you can begin paying hell with them as usual.

A well-respected mechanical engineer that we deal with on occasion reported a recent OSHA issue to us, and we thought it was important enough to pass it along.

 

A few years ago, there was an explosion at the Hilton Hotel in San Diego caused by natural gas, which injured 14 employees. During the course of investigation, it was discovered that there is a phenomenon that exists whereby the odor that is added to natural gas can be absorbed by the pipe that carries the gas, removing the odor. It was alleged that the cause of the natural gas explosion was the fact that there was no odor alerting people to the existence of a gas leak. While we were told that that matter settled, what alarmed us and the reason for this article is that we are informed that recently a contractor working in the San Diego area was served with an OSHA violation, alleging that the contractor did not provide ample safety devices to protect his employees against this gas odor fade issue. This was an issue that was not even known to exist until the recent litigation came on, but somehow OSHA learned of the problem and issued a Citation. While the issue was resolved or dropped by OSHA, it raises the issue that all contractors should be aware of this gas odor fade phenomenon, and should probably use gas detection devices to determine whether gas is present and should not rely solely on their nose.

 

Dear Santa,

 

How are you doing? I hope you've had a successful year and have come up with a lot of interesting toys. It's really neat how you're able to do that year after year. I guess that's how you stay number one in the Christmas presents business.

 

Actually, I admire the way you run Christmas. You really have a handle on it. You find out what people want (with letters like this and having kids tell you in person), and then you make the presents and control how they are delivered. It's an impressive operation.

 

I also like how you've got it to where when somebody says "Christmas presents," people automatically think Santa Claus. What a marketing advantage. Best of all, even though you're a huge success, people still don't know much about your private life. It's just rumors. That's so neat.

 

I think being at the North Pole helps. That was a good move. For example, when you're designing toys, only your elves know what you're doing, and you're way up there where nobody can spy on you and steal your ideas. And even if they do, you can always just let it out that you're making the same stuff to bring to people for free, so why would they buy the other guy's stuff?

 

Also, other people who make Christmas presents can't deliver them like you can. Yours is the only sleigh on the distribution highway. You must get some great discounts from them, because if they don't play ball you can just refuse to give out their presents. Very Sharp.

 

What I don't get is why you give away stuff. That's the dumbest idea I've ever heard. I admit, its why you're number one- who could compete with a deal like that? But it must make it hard to stay in business, especially when you have to visit every kid in the world. You have to keep growing or fail.

 

Here's an idea on how you can help finance your operation: Give everybody at least one present at Christmas, then you could make batteries and sell them the rest of the year. It would create a demand: You give people something and then sell them what they need to make it work.

 

Another thing, about you coming down the chimney. That's so slow and inefficient. And what about all the people who don't have chimneys? Santa. I have one word for you--windows. Everybody has windows.

 

That's about all I have to say. You're probably wondering if I was good or bad this year, but I don't really like to talk about my personal life, if that's O.K. (Just out of curiosity: When you were a boy, did any of the other kids call you a nerd?) Anyway, I don't really have anything to ask for. Mostly I think up something to play with and then build it myself. I guess I'm sort of like you--I make my own toys.

 

Best of luck,

Billy Gates

In this case, Templo Calvario Spanish Assembly of God v. Gardner Construction Corporation et al. (2011), the owner (a church) and an unlicensed contractor submitted their disputes to binding arbitration. The arbitrator found for the church and ordered disgorgement of approximately $160,000 that had been paid to the contractor by the church. The church then petitioned to confirm the arbitration award as a judgment against the unlicensed contractor. The unlicensed contractor argued to the trial court that because it was unlicensed, the entire arbitration agreement was illegal and void and therefore the arbitration award cannot be enforced. The trial court followed older case law on the subject and found the arbitration agreement was illegal. The Court of Appeal reversed. The Court of Appeal specifically referred to the MW Erectors case which held that a contract with an unlicensed contractor was not automatically void. It just bars suit to collect compensation for unlicensed work. Because the contract was not automatically void, the court found no compelling need to conclude that the license law bars the parties from arbitrating their dispute. Interestingly, there was no reference whatsoever to the Lindenstadt v. Staff Builders decision, discussed above. In that case, the Court of Appeal refused to allow enforcement of an award by someone who was unlicensed. Here, the award was being enforced against the unlicensed contractor. Although the court didn't say it, one could assume that had the unlicensed contractor won, the Court of Appeal would have refused to enforce the award under the Lindenstadt case.