RICHARD ANDRADE HONORED AS ONE OF TOP 10 ATTORNEYS IN CONSTRUCTION LAW

Recognized as One of the Top 10 Men of the Year by Strathmore's Who's Who Worldwide Publication

Laguna Hills, CA, May 27, 2016 - Richard B. Andrade, Esq. of Laguna Hills, California has been recognized as one of the Top 10 Men of the Year for 2016 by Strathmore's Who's Who Worldwide for his outstanding contributions and achievements in the field of law.

About Richard Andrade:

Mr. Andrade has over 36 years of experience specializing in the construction industry. He is the Firm Founder, President and principal attorney of Andrade & Associates, APLC which is a law firm providing legal services in California. The practice focuses primarily on construction litigation (public and private), including “changed conditions,” change order and differing site condition claims, scope of work claims, mechanic's lien and stop notice litigation, labor law, including wage and hour claims, trust fund litigation and general business litigation. Mr. Andrade counsels and represents general contractors, some project owners, subcontractors and material suppliers. He has extensive experience in all aspects of the California Judicial System, the Federal System, the National Labor Relations Board and the California Agricultural Labor Board. He was voted Southern California Top Lawyers in 2014, Top Rated Lawyers in Labor and Employment Law in 2014, Top Rated Lawyer in Commercial Litigation in 2007, 2008, 2010, 2013 and 2014, and 2009 South Bay's Favorite Attorneys as determined by readers. He has been “AV” rated by Martindale-Hubbell for over 30 years, and was listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers in 1996. Mr. Andrade was listed in Who's Who in California in 1997. He is a member of the State Bar of California, American Bar Association and the Orange County Bar Association. He is affiliated with the Associated General Contractors Statewide Legal Advisory Panel, the Southern California Constructors Legal Advisory Committee, the American Trial Lawyers Association and the Engineering Contractors Association.

Andrade & Associates

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Born on May 8, 1951 in San Diego, California, Mr. Andrade obtained an A.A. in Business from Southwestern Community College, a B.S. in Business/Information Systems Management from San Diego University in 1973 and a J.D., Cum Laude, from California Western School of Law in 1977. He holds a California State General Engineering Contractors License since 1996. Previously, he was actively involved in the construction industry as an owner of a company that performed heavy civil engineering projects for over 10 years. Prior to starting his own law practice, Mr. Andrade worked as an associate at a Newport Beach based firm, Dressler, Stoll & Jacobs. Subsequently, he served as a Senior Associate at the Beverly Hills firm of Cruickshank, Anton and Grebow. After “defensing” a lawsuit that everyone expected the clients to lose, the clients were so appreciative that they provided the financing that enabled Mr. Andrade to start his new firm in Newport Beach, California.

Mr. Andrade is especially proud of several cases he has represented. He successfully challenged an Administrative Law Judge's competency due to irrational rulings during trial where he awarded $20 million of punitive damages against Mr. Andrade's clients. On appeal, the Appellate Court determined that the Administrative Law Judge's bias in favor of the claimant, as well as his irrational rulings, including the amount of punitive damage award, amply demonstrated his lack of competency. The underlying trial award was vacated and a new trial was ordered for the defendants. He also successfully defended a construction industry general contractor against a claim exceeding $1 million being made by a plaintiff regarding multi-employer trust funds on the basis that the contractor's bargaining unit truly consisted of only one employee and hence not subject to the terms and conditions of the multi-employer trust fund contracts. The award was upheld on appeal. Mr. Andrade also successfully represented a general contractor in a $280 million bid protest where the awarding agency deemed errors in the contractor's bid as inconsequential, immaterial and allowed the agency to waive the irregularities. The apparent second low-bidder challenged the award. The Appellate Court agreed with the findings of the trial court and upheld the award to Mr. Andrade's client.

Married on May 19, 1979, Mr. Andrade and his wife Kate have two children, Nicole and Taylor. In his spare time he enjoys skiing and tennis.

For further questions or concerns, please contact our firm at (949) 553-1951.

Free Initial Consultation on all Cases

AWARD FROM STRATHMORES WHO'S WHO

RICHARD B. ANDRADE, ESQ. RECOGNIZED AS ONE OF THE TOP 10 MEN
OF THE YEAR BY STRATHMORE’S WHO’S WHO WORLDWIDE PUBLICATION
FARMINGDALE. NEW YORK, MAY 26. 2016. Richard B. Andrade, Esq. of Laguna Hills, California has been recognized as one of the Top 10 Men of the Year for 2016 by Strathmore’s Who’s Who Worldwide for his outstanding contributions and achievements in the field of law.

ABOUT RICHARD ANDRADE
Mr. Andrade has over 36 years experience specializing in the construction industry. He is the Firm
Founder, President and principal attorney of Andrade & Associates, APLC which is a law firm providing legal services in California. The practice focuses primarily on construction litigation (public and private), including “changed conditions”, change order and differing site condition claims, scope of work claims, mechanic’s lien and stop notice litigation, labor law, including wage and hour claims, trust fund litigation and general business litigation.

Mr. Andrade counsels and represents general contractors, some project owners, subcontractors and material suppliers. He has extensive experience in all aspects of the California Judicial System, the Federal System, the National Labor Relations Board and the California Agricultural Labor Board. He was voted Southern California Top Lawyers in 2014, Top Rated Lawyers in
Labor and Employment Law in 2014, Top Rated Lawyer in Commercial Litigation in 2007, 2008, 2010, 2013 and 2014, and 2009 South Bay’s Favorite Attorneys as determined by readers. He has been “AV” rated by Martindale-Hubbell for over 30 years, and was listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers in 1996. Mr. Andrade was listed in Who’s Who in California in 1997. He is a member of the State Bar of California, American Bar Association and the Orange County Bar Association. He is affiliated with the Associated General Contractors Statewide Legal Advisory Panel, the Southern California Constructors Legal Advisory Committee, the American Trial Lawyers Association and the Engineering Contractors Association.
Born on May 8, 1951 in San Diego, California, Mr. Andrade obtained an AA. in Business from
Southwestern Community College, a B.S. in Business/Information Systems Management from San Diego University in 1973 and a J.D., Cum Laude, from California Western School of Law in 1977. He holds a California State General Engineering Contractors License since 1996. Previously, he was actively involved in the construction industry as an owner of a company that performed heavy civil engineering projects for over 10 years. Prior to starting his own law practice, Mr. Andrade worked as an associate at a Newport Beach based firm, Dressier, Stoll & Jacobs. Subsequently, he served as a Senior Associate at the Beverly Hills firm of Cruickshank, Anton and Grebow. After “defensing” a lawsuit that everyone expected the clients to lose, the clients were so appreciative that they provided the financing that enabled Mr. Andrade to start his new firm in Newport Beach, California. Mr. Andrade is especially proud of several cases he has represented. He successfully challenged an Administrative Law Judge’s competency due to irrational rulings during trial where he awarded $20 million of punitive damages against Mr. Andrade’s clients. On appeal, the Appellate Court determined that the Administrative Law Judge’s bias in favor of the claimant, as well as his irrational rulings, including the amount of punitive damage award, amply demonstrated his lack of competency. The underlying trial award was vacated and a new trial was ordered for the defendants. He also successfully defended a construction industry general contractor against a claim exceeding $1 million being made by a plaintiff regarding multi-employer trust funds on the basis that the contractor’s bargaining unit truly consisted of only one employee and hence not subject to the terms and conditions of the multi-employer trust fund contracts. The award was upheld on appeal. Mr. Andrade also successfully represented a general contractor in a $280 million bid protest where the awarding agency deemed errors in the contractor’s bid as inconsequential, immaterial and allowed the agency to waive the irregularities. The apparent second low-bidder challenged the award. The Appellate Court agreed with the findings of the trial court and upheld the award to Mr. Andrade’s client.

Married on May 19, 1979, Mr. Andrade and his wife Kate have two children, Nicole and Taylor. In his
spare time he enjoys skiing and tennis.

ABOUT STRATH MORE’S WHO’S WHO WORLDWIDE
Strathmore’s Who’s Who Worldwide highlights the professional lives of individuals from every
significant field or industry including business, medicine, law, education, art, government and
entertainment. Strathmore’s Who’s Who Worldwide is both an online and hard cover publication where we provide our members’ current and pertinent business information. It is also a biographical information source for thousands of researchers, journalists, librarians and executive search firms throughout the world. Our goal is to ensure that our members receive all of the networking, exposure and recognition capabilities to potentially increase their business.

MINIMUM WAGE INCREASE

DEMOCRATS JAM MINIMUM WAGE INCREASE BILL THROUGH LEGISLATURE

FIRST $0.50 INCREASE TAKES AFFECT ON JANUARY 1, 2017, CONTINUES TO2022

The Legislature passed a proposal to incrementally increase the minimum wage up to $15 per hour by January 1, 2022. The bill passed on Thursday March 31st and Governor Brown was expected to sign the measure. 

 SB 3, increases the minimum wage by $0.50 beginning January 1, 2017. The current California minimum wage is $10.00 per hour. The hourly wage then increases by one dollar every year until it reaches $15 by January 1, 2022. Every year after 2022, SB 3 indexes future increases to the US Consumer Price Index up to 3.5% per year.

 The Times reported earlier this week that passage of the bill would result in a $22 billion wage increase for workers. Unfortunately, the Times failed to see the increase inversely for California businesses — SB 3 will be a $22 billion labor increase for employers.  The bill gives employers with 25 or less employees one additional year to comply with the increase in minimum wage.

 The legislature has increased the minimum wage before, but in years past it was coupled with some type of tax savings or other type of savings for employers. These savings defrayed the cost of labor increases. There were no such savings in SB3.

TWO IMPORTANT LESSONS LEARNED CONCERNING PROPER CONTRACTOR LICENSING

Lesson #1: If You Fire a Licensed Subcontractor, Hire a Licensed Subcontractor.  A general contractor is unlikely to recover its costs to replace the work of its subcontractor with an unlicensed takeover subcontractor. The reason stems from the policy behind the licensing laws. Courts understand that licensing laws are intended to protect the public from injury by unqualified persons. The Legislature has made it clear that the licensing requirements provide minimal assurance that all persons offering such services have the requisite skill and character, understand applicable local laws and codes, and know the rudiments of administering a contracting business. See Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 995; Holland v. Morse Intern, Inc., (1st Dist. 2001) 86 Cal. Apll.4th 1443; Domach v. Spencer (3rd Dist., 1980) 101 Cal.App.3d 308, 311. These laws are interpreted and enforced with this public policy objective in mind. Therefore, the Courts won’t reward a general contractor for breaking the laws, including the hiring of an unlicensed subcontractor. Case in point: In January 2011, a national general contractor’s request for a set off of the money paid to an unlicensed takeover subcontractor, against the payments demanded by the licensed subcontractor that it terminated ,was denied by a prominent Los Angeles trial judge in a case involving a payment dispute. The Court in that matter stated the “For the general contractor to assert damages arising out of its hiring of an unlicensed subcontractor in this courtroom would be an end run around California’s strict licensing laws.” So if you fire a licensed subcontractor, make sure the take over subcontractor is properly licensed.

Lesson #2: Keep Your RMO/RME Must be actively involved in your business.   California contractors received a firm reminder only a few years ago in White v. Cridlebaugh to keep their RMO or RME involved in their projects. White v. Cridlebaugh, 178 Cal.App.4th 506. In White, JC Master Builders, Inc., built a residence for a Mr. White. White fired JC, and a lawsuit over money ensued. During the course of the lawsuit, it was discovered that the RMO for the A and B licenses held by JC had left the country two years earlier to go on a church mission, and she had no knowledge White construction  or their projects since she had turned all control over to others at JC. The end result was that the Court found that JC was effectively unlicensed under 7031(b) and ordered JC to return all of the money paid to it by Mr. White without set off. JC also had to pay Mr. White’s attorney fees and costs.

The morale of the story is that you must be properly licensed at all times during the performance of your work.  It is very easy to  forget that an employee who left employment who was the RME/RMO for the company, has to be replaced within 90 days from his departure.  Contractors need to verify the status of their license with the Contractors License Board every year to ensure compliance.  This should become an annual event performed at the beginning of your calendar year or fiscal year.  By doing this you will not have any "surprises" on projects which you perform.

Pitfalls in Bidding Public Works: Full disclosure by public agencies to prospective bidders may no longer be the rule.

A recent decision from the Riverside Superior Court casts into doubt a contractor’s entitlement to be paid for conditions concealed by a public agency or entity. In the Riverside case, a public entity (the District) knew of a restriction in an encroachment permit which substantially increased the contractor’s costs of performance. The District appeared to have intentionally failed to disclose the restriction in an effort to get lower bids for the work. It was established that the District had disclosed the restrictions on its prior five projects. On this project the District included only a statement that the contractor would be required to comply with the City’s permit requirements. The District did not disclose the restriction in those permits, and the contractor submitted its bid without including costs caused by the permit restrictions. The contractor ultimately suffered over a 23% increase in the cost of performance as a result of the District’s concealment. As a longstanding general rule, a bidding contractor is entitled to reasonably rely upon the information provided by the agency. A public agency will be responsible for paying a contractor for costs incurred in excess of the contractor’s bid if the costs are caused by the public entity’s failure to disclose facts. Under the general rule, the Riverside contractor would have been entitled to be paid for the extra costs. A very similar case was decided in a contractor’s favor in 1998 in Howard Contracting, Inc. v. G.A. McDonald Construction Co., Inc. In Howard, the public entity failed to disclose known facts and merely stated that the contractor had to comply with all permitting requirements of third party regulatory agencies. The Howard Court held that mere reference to compliance with permit requirements was less than full disclosure, specifically reasoning that, “[s]ince the City bore the responsibility for obtaining the project permits, bidders were reasonably entitled to assume that the City would inform them of any permit requirements or restrictions adversely affecting their ability to perform work on the project.” November 2011 ORANGE COUNTY Mission Ridge 27101 Puerta Real, Suite 120 Mission Viejo, CA 92691 LOS ANGELES City National Plaza 515 S. Flower Street, 36th Floor Los Angeles, CA 90071 SAN DIEGO Emerald Plaza 402 West Broadway, Suite 400 San Diego, CA 92101 T: (949) 553-1951 www.aalaws.com F: (949) 553-0655 The Riverside Court relied instead upon a 2010 decision of the California Supreme Court entitled Los Angeles Unified School District v. Great American Insurance (Hayward). In Hayward, the Supreme Court adopted the Superior Knowledge doctrine, holding that while a public agency may not be liable for failing to disclose information a reasonable contractor should have discovered on its own, it may be liable when the totality of the circumstances were such that the public entity has reason to know that a responsible contractor acting diligently would be unlikely to discover the condition that materially increased the cost of performance. The Riverside Court held that the District had not misled the contractor. Instead, the Court found that the mere reference to the permit obligated the contractor to review the permit requirements prior to submitting its bid and excused the District’s nondisclosure. The pragmatic takeaway is that at least one court is applying Hayward to reduce the protections enjoyed by contractors. Contractors should take care in reviewing all documents referenced in bid specifications in order to protect themselves from costly surprises.

Public Works: No More Oral Change Orders

The courts in 2010 dealt a severe blow to a contractor's right to perform extra work based upon an agency's oral directive. In P&D Consultants v. City of Carlsbad (Dec. 2010), P&D entered into a written contract with the City to provide civil engineering services. The contract provided (as do all public contracts) that written change orders were required to modify the work and cost of the work to be performed. Because the procedure used by the City often took several weeks to execute agreed upon change orders, the City often orally directed P&D to go forward with the agreed upon work without having a written change order in hand. The City requested that P&D perform extra work set forth in amendment 5. As before, P&D began the work prior to having a written change order in hand. A dispute subsequently arose between the City and P&D about the value of the work in amendment 5. P&D Sued the City for additional compensation it believed it was entitled to under amendment 5. At trial P&D argued that the contract's written change order requirement had been waived by the City's oral authorizations of prior work and the parties conduct in going forward with the agreed upon work without having a written change order in place. Held: a public contract cannot be legally orally modified or modified by conduct. P&D was not entitled to extra compensation because the contract required the contractor to have a written change order in place prior to starting the work. "By ostensibly relying on the [City's] oral authorization or direction to begin or perform extra work without a written change order, P&D acted at its peril." The court also denied P&D's other theories of recovery and entered judgment for the City.

Just another reminder for those performing public works projects, you must get a written change order before you perform any extra work or you will not get paid for the extra work.

WATCH OUT FOR THOSE ATTORNEYS FEES

Any one who has been associated with the construction, has probably been involved in a lawsuit or two.  Hopefully the case settled and did not have to go to trial.  Typically when a case settles, an agreement is reached on the amount due, each side bears the cost of his own attorney and the case gets dismissed by the Plaintiff.

A recent decision of the Appellate Court gives Defendants one more thing to worry about- the payment of attorneys even though the defendant reached an agreement with the Plaintiff to settle, the settlement was paid and the case voluntarily dismissed by the Plaintiff.!

In DeSaulles v. Community Hosp. of the Monterey Peninsula (SC S219236 3/10/16) ,  that was the exact situation except the defendant was forced to pay the Plaintiff 's attorney's fees despite the settlement and voluntary dismissal of the complaint.

 Code of Civil Procedure section 1032, subdivision (a)(4) defines the “prevailing party” in litigation to include “the party with a net monetary recovery” and “a defendant in whose favor a dismissal is entered.”   A “prevailing party,” so defined, “is entitled as a matter of right to recover costs in any action or proceeding.”  (§ 1032, subd. (b).)  The question in this case is whether a plaintiff who voluntarily dismisses an action after entering into a monetary settlement is a prevailing party under section 1032, subdivision (a)(4) (hereafter section 1032(a)(4))?.

 The Court of Appeal below answered in the affirmative, reasoning that the statutory definition of “prevailing party” includes a party that obtains a “net monetary recovery” and that a settlement in which a defendant pays a plaintiff some amount of money is a net monetary recovery, at least under the circumstances of this case.  In reaching this conclusion, the Court of Appeal disagreed with Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175 (Chinn), which held that the defendant is the prevailing party where a settlement results in a dismissal.  Chinn reasoned that the statutory definition of “prevailing party” includes “ ‘a defendant in whose favor a dismissal is entered’ ” and that a settlement is not a “ ‘net monetary recovery.’ ”  (Id. at p. 188.)

 The Court stated "We conclude that the Court of Appeal below was correct:  When a defendant pays money to a plaintiff in order to settle a case, the plaintiff obtains a “net monetary recovery,” and a dismissal pursuant to such a settlement is not a dismissal “in [the defendant’s] favor.”  (§ 1032(a)(4).)  As emphasized below, this holding sets forth a default rule; settling parties are free to make their own arrangements regarding costs."

If the Courts continue to interpret the statute in this manner, it is empairative that in any litigation that gets settled, there be a written settlement agreement which provides either that each party is to bear its own costs and fees or if some other arrangement was agreed to (Defendant agreed to pay a portion of the fees), the specific manner of how attorney fees and costs are going to be handled must be set forth in writing as part of the settlement agreement.  An oral settlement likewise would subject you to the potential of having to pay the settlement and the Plaintiff's attorneys fee and costs.

Attorneys are not always bad and in this situation can make sure you do not get sucked into the trap suffered by the defendant in the DeSaulles case.

IMPORTANT NEW LABOR LAW CHANGE

Labor Code Section 1720.9 effective July 1, 2016

 Last year, AB 219 was passed in Sacramento.  It adds Section 1720.9 to the California Labor Code and requires prevailing wages to be paid to ready-mix concrete drivers, from their receipt of concrete at the factory or batching plant to their return trip to the factory or batching plant on “public works” projects.  Payment of prevailing wages will apply to contracts awarded on or after July 1, 2016.

 Section 1720.9 expands the definition of “public works” under the Labor Code to include "the hauling and delivery of ready-mixed concrete to carry out a public works contract".  A public works project is one for any state agency, including the California State University and University of California systems, or any political subdivision of the state, which would include local agencies and school districts, among others.  Section 1720.9 defines ready-mixed concrete as "concrete that is manufactured in a factory or a batching plant, according to a set recipe, and then delivered in a liquefied state by mixer truck for immediate incorporation into a project."

 This section requires the entity hauling or delivering ready-mix concrete to submit certified payroll records to the company that hired it, within three working days after the employee has been paid. Those records must be accompanied by a written time record certified by each driver who hauled or delivered the ready-mixed concrete.  The entity hauling or delivering ready-mixed concrete shall be considered a subcontractor, solely for the purposes of this chapter of the Labor Code.

Section 1720.9 requires, on public works projects, that a written subcontract be entered between the entity hauling or delivering the ready-mixed concrete and the party who hired it.  That subcontract shall require compliance with this chapter of the Labor Code.

 Please keep in mind this when bidding work requiring these services after July 1, 2016.