June 2022 There is often confusion as to when an insurance company must pay for an insured’s choice of counsel. In a number of states, an insurer’s agreement to defend a lawsuit against an insured, while reserving the right to deny liability for the outcome of a lawsuit, can trigger an obligation to provide independent counsel (commonly referred to as “Cumis counsel”). The duty to provide independent counsel is typically due to a conflict of interest, which arises when: (a) the insurer reserves the right to deny liability for the outcome of the lawsuit against its insured, (b) the insurer […]

  June 2022 Under California Labor Code § 226.7, and the Industrial Welfare Commission (“IWC”) wage orders, employers must provide employees with a premium payment of one-hours’ worth of wages for every non-compliant meal and rest breaks.  Non-compliant meal breaks include failing to provide employees with at least 30 minutes, failing to completely relieve employees of job duties during the meal break, and failing to provide employees with the opportunity to take a meal break within the first five-hours of employment.  Non-compliant rest breaks include failing to provide two 10-minute paid breaks during a regular eight-hour workday and failing to […]

Chambers USA Guides 2022 California Construction Law “What the Gibbs Giden team is known for A strong presence in construction disputes, offering clients extensive experience in litigation and international arbitration. Displays further expertise in risk management, in addition to bid protests and procurement issues. Advises clients on a broad range of construction projects, and has a continued focus on healthcare projects. Particular strength in Southern California, with offices in Los Angeles and Irvine, alongside one in Las Vegas, Nevada. Able to draw on additional expertise in related areas such as fidelity and surety law, tort defense and real estate. Notable […]

May 2022 The opinion in Kim v. TWA Construction, Inc. (2022 Cal. App. LEXIS 412) issued by the Court of Appeal of California Sixth Appellate District, on May 13, 2022, makes it clear that a properly licensed general contractor cannot bring an action for compensation from an owner for work performed by an unlicensed subcontractor. California licensing law has long made explicit that an unlicensed contractor cannot bring or maintain any action to collect or recover compensation for work that contractor performed unless they were duly licensed at all times during the performance of that work. This new ruling extends […]

  California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In […]

March 2022 The pandemic certainly did not slow down California’s Legislature and appellate courts. The following five appellate decisions significantly impact businesses that use standard form agreements, employ mechanics lien and related remedies to ensure payment for labor or materials on construction projects, rely on website/online terms and conditions, and agree to resolve debts with written agreements. INCONSPICUOUS ARBITRATION (AND POSSIBLY OTHER CONTRACT) CLAUSES WILL NOT BE ENFORCED The Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc., 58 Cal. App. 5th 180 (2020) case should encourage all distributors and manufacturers that utilize standard form credit, sales, or rental agreements […]

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, also referred to as House Resolution (“H.R.”) 4445 (the “Act”). The overall purpose of the Act is to prohibit mandatory enforcement of arbitration agreements sexual assault and sexual harassment lawsuits. Instead, the Act gives the employee the option of proceeding with arbitration, if an arbitration agreement exists, or proceeding with claims in court, by amending the Federal Arbitration Act. The impact of the Act is that cases based on sexual assault or sexual harassment occurring or on or after March […]

California courts continue to demonstrate little patience for employment arbitration agreements that they deem are one-sided in the employer’s favor. In Ramirez v. Charter Communications, Inc., the appellate court affirmed a lower-court’s ruling holding that an employment arbitration agreement was unconscionable and, therefore, unenforceable.  The Ramirez court started its review with the well-established principle that unconscionability requires demonstrating both procedural and substantive unconscionability. Procedural unconscionability focuses on “ ‘surprise’ due to unequal bargaining power.” Substantive unconscionability focuses on “ ‘overly harsh’ or ‘one-sided’ results.”  While both procedural and substantive unconscionability need to exist, the elements do not need to exist in the same degree: “[t]he more […]

February 2022   Employers looking to retain or recruit talent realize that employees are not simply looking for a position with the highest salary. Employees may, for example, prioritize quality fringe benefits. These benefits may include traditional benefits, such as health and dental insurance, but also education allowances, surrogacy and adoption assistance, or unlimited vacation time. The COVID-19 pandemic has also shown that many employees are prioritizing office flexibility, including the ability to work remotely, so they can spend more time with their family and less time at the office or commuting. An idea that has received media attention lately […]