California Supreme Court Clarifies Deadline to File Anti-SLAPP Motions in Light of Amended Pleadings

By: Tony Carucci

California’s “anti-SLAPP” (“SLAPP” is an acronym for strategic lawsuit against public participation) statute—codified at California Code of Civil Procedure section 425.16 et seq.—is the primary vehicle for defending against any action involving petitioning or free speech. The statute was designed to provide an early and fast summary judgment-like procedure to allow defendants and cross-defendants to file a motion to dismiss either an entire complaint, specific causes of action, or even just portions of a cause of action, and to require the plaintiff to respond before conducting discovery. By facilitating an early challenge to a plaintiff or cross-complainant’s claims, the anti-SLAPP statute allows the responding party to avoid the costs and delay that chill the exercise of constitutionally protected rights.… Read More »

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Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?

By: Anthony J. Carucci

In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer to compromise is explained in section 998(c)(1):

If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.

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Developer Awarded Cost of Preparing Administrative Record in CEQA Lawsuit

Lawsuits under the California Environmental Quality Act (“CEQA”) typically proceed as petitions for administrative mandamus. This means the petitioner is asking the court to review an agency’s decision and ultimately issue a mandate directing the agency to set aside its decision.  In this respect the court acts like an appellate court, reviewing the agency’s decision.  There are no witnesses or trial exhibits or jurors or opening statements.  The court reads the parties’ briefs, hears their arguments, and makes its decision based on the evidence in the administrative record of proceedings.

The administrative record is often voluminous. It includes not only the environmental reports, but also all project application materials, staff reports and related documents, public notices, written comments and responses, all evidence or correspondence submitted to or relied upon by the agency, hearing transcripts, written findings, and more. … Read More »

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Governor Ducey Vetoes Water and Development Bills

By Patrick J. Paul

With the second regular legislative session of Governor Doug Ducey’s tenure complete, the Governor exercised his veto pen rejecting several laws impacting water and land development.

On May 9th, Governor Ducey vetoed two measures that could have allowed developers to manipulate the requirements of Arizona’s Groundwater Management Act of 1980: Senate bills 1268 (adequate water supply requirements) and 1400 (county water supply).  The bills’ sponsor, Senator Gail Griffin, had expressed concerns that the federal government was exercising too much control of the water supply in Cochise County in its efforts to ensure the continued flow of water in the San Pedro River.… Read More »

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Offensive Discovery after Strudley and Changes to the Colorado Rules of Civil Procedure

By: Neal McConomy

Toxic tort cases often involve real property, especially in areas with large mining and energy sectors like the West and Southwest. The cases frequently have large potential damage values and require extensive discovery. Numerous expert witnesses, vast amounts of real property testing, and significant document production are common. The cost of engaging in this far reaching discovery is often a significant factor in early settlement negotiations. Toxic tort defendants have a substantial incentive to settle disputes before engaging in discovery no matter the likelihood of success at trial because the discovery costs alone represent a sizeable expense that cannot be recovered even with a successful verdict at trial.… Read More »

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Homebuilders Welcome Recent Court Decisions

By:  Patrick Paul

Arizona homebuilders will welcome with open arms two recent legal rulings of substantial impact to their industry. In the first decision, on July 28, 2015, in Sullivan v. Pulte Home Corp., No. 1 CA-CV 14-0199, the Arizona Court of Appeals held that homebuilders do not owe a duty of care to subsequent (non-original homeowners) for economic losses arising from latent construction defects unaccompanied by physical injury to persons or other property.

The fairly simple fact scenario follows.  In 2000, Pulte Home Corporation sold the home at issue to the original homeowners, who, in 2003, sold the property to the Sullivan Plaintiffs.  … Read More »

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The EPA Approves New Environmental Due Diligence Standard

By:  Patrick Paul

On December 30, 2013, the United States Environmental Protection Agency (EPA) issued its final rulemaking recognizing the newly amended ASTM standard practice for Phase 1 Environmental Site Assessments, E 1527-13 as satisfying the agency’s All Appropriate Inquiries (AAI) rule at 40 C.F.R. Part 312.  Curiously, EPA did not remove the existing reference to the prior E1527–05 standard.  In fact, EPA specifically provided that “today’s rule does not require that any party use this standard.”  Rather, the new rule at least temporarily provides an additional method to achieve AAI without altering the existing requirements or otherwise mandating new requirements.  … Read More »

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