05/10/10

Our thoughts and prayers are with Mike Hurley and his family. Please see the message below:

It is with great sadness that I share with you the news of the passing of Gina Hurley. Gina was as much a part of our GAF family as her husband Mike. Gina lost her battle with Ovarian Cancer which she waged with strength and courage for the last 18 months. We will all miss her very much. A service is planned in Southern California on Wednesday May 12th. Details will be available on the Caring Bridge link - caringbridge.org/visit/ginahurley

The Service time has been changed to 11:00 a.m.

FUNERAL ARRANGEMENTS

Wednesday, May 12th @ 11:00 a.m.
Tustin Church of Christ
16481 East Main St
Tustin, CA 92780-4031
714-972-9922

______________________________________________

02/10

SAFETY NEWS

Did you know that over 600,000 Americans will contract Hepatitis B this year? Has your company completed bloodborne pathogens training? details

______________________________________________

02/10

We are sad to relay that Pamela Mary Berumen, has lost her courageous battle with cancer on February 9, 2010. Memorial Service details

_______________________________________________

01/10
CONTRACTOR'S LICENSE LAW

Timothy Owen, a licensed contractor, verbally agreed to replace eighteen windows, install a sliding door, and some other doors etc. in a home. He performed the work in July and August of 2005. However, his contractor's license was not issued until September 2005.

On behalf of the homeowner, other contractors reviewed the quality of the work and it was found to be insufficient. When this was told to the contractor, Owen became angry and demanded more money, and eventually abandoned the project. The homeowner hired another contractor and the cost to correct was $13,265.00.

Steve Sands, the Registrar of Contractors, issued a Citation to Owen, based on violations of the Contractor's License Law. Specifically, the violations were engaging in the business of contracting without a license, willfully and materially departing from accepted trade standards for good workmanship, failing to correct or complete the project for the stated contract price, failing to include required provisions in the contract, willfully or fraudulently acting in a manor that substantially injured another and falsely claiming a workers compensation insurance exemption.

The Citation included a civil penalty in the total amount of $1,600.00 and an order of correction requiring the contractor to pay $7,880.00. The Citation was contested and a hearing was held before an Administrative Law Judge. Owen argued that the standard of proof at the hearing should be clear and convincing evidence. However, the Administrative Law Judge ruled that the standard of proof was a preponderance of the evidence (a lesser standard).

After four days of testimony, the Administrative Law Judge held that the alleged violations were true and increased the civil penalty to $2,000.00, finding that Owen's conduct was deceitful, etc. The Registrar adopted the Administrative Law Judge's proposed decision. Shortly thereafter, Owen filed a petition asking the court to set aside the decision on the grounds that the Administrative Law Judge applied the wrong standard of proof, the standard applied by the Administrative Law Judge was a preponderance of evidence, the lesser standard. Again, Owen argued that the standard should be clear and convincing proof. His reasoning was that there were other cases, where the standard was held as being clear and convincing evidence of proof when a license was going to be suspended or revoked etc. However, in those cases, it was to suspend or revoke a professional license. That is not the case in this trial.

In a lead case, the proper standard of proof in an administrative hearing to revoke or suspend a doctor's license should be clear and convincing evidence to a reasonable certainty and not a mere preponderance of evidence.

The Registrar's position was upheld. Most specifically, Owen did not cite any cases that show that clear and convincing evidence was the standard of proof that applies in a licensed contractor disciplinary proceeding.

_______________________________________________

01/10
ATTENTION CONTRACTORS!!!

ARBITRATION
(Part Two)

This month we will be discussing in detail, the California laws for correcting, confirming or vacating an award. Last month we discussed the Federal arbitration procedures in more detail. The following are portions of the California law dealing with arbitration awards.

Code of Civil Procedure section 1285.8 states: "A petition to correct or vacate an award, or a response requesting such relief, shall set forth the grounds on which the request for such relief is based."

Code of Civil Procedure section 1286.2 states in part ".the court shall vacate the award if the court determines any of the following:
(1) The award was procured by corruption, fraud or other undue means.
(2) There was corruption in any of the arbitrators.
(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.
(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.
(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.
(b) Petitions to vacate an arbitration award pursuant to Section 1285 are subject to the provisions of Section 128.7.

1286.4. The court may not vacate an award unless:
(a) A petition or response requesting that the award be vacated has been duly served and filed; or
(b) A petition or response requesting that the award be corrected has been duly served and filed and;
(1) All petitioners and respondents are before the court; or
(2) All petitioners and respondents have been given reasonable notice that the court will be requested at the hearing to vacate the award or that the court on its own motion has determined to vacate the award and all petitioners and respondents have been given an opportunity to show why the award should not be vacated.

1286.6. Subject to Section 1286.8, the court, unless it vacates the award pursuant to Section 1286.2, shall correct the award and confirm it as corrected if the court determines that:
(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.

1286.8. The court may not correct an award unless:
(a) A petition or response requesting that the award be corrected has been duly served and filed; or
(b) A petition or response requesting that the award be vacated has been duly served and filed and:
(1) All petitioners and respondents are before the court; or
(2) All petitioners and respondents have been given reasonable notice that the court will be requested at the hearing to correct the award or that the court on its own motion has determined to correct the award and all petitioners and respondents have been given an opportunity to show why the award should not be corrected.

1287. If the award is vacated, the court may order a rehearing before new arbitrators. If the award is vacated on the grounds set forth in subdivision (d) or (e) of Section 1286.2, the court with the consent of the parties to the court proceeding may order a rehearing before the original arbitrators.

If the arbitration agreement requires that the award be made within a specified period of time, the rehearing may nevertheless be held and the award made within an equal period of time beginning with the date of the order for rehearing but only if the court determines that the purpose of the time limit agreed upon by the parties to the arbitration agreement will not be frustrated by the application of this provision.

1287.2. The court shall dismiss the proceeding under this chapter as to any person named as a respondent if the court determines that such person was not bound by the arbitration award and was not a party to the arbitration.

1287.4. If an award is confirmed, judgment shall be entered in conformity therewith. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action of the same jurisdictional classification; and it may be enforced like any other judgment of the court in which it is entered, in an action of the same jurisdictional classification.

1287.6. An award that has not been confirmed or vacated has the same force and effect as a contract in writing between the parties to the arbitration.