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					    CONFERENCE CALL
                WITH NEUMILLER & BEARDSLEE
                                       January 2003 Newsletter




Inside               Neumiller & Beardslee
   THIS          Celebrates 100 Years of Service!
 Issue

  N&B at
  Ag Expo
    Page 4




    New
  Laws for
Construction
  Defects
    Page 6                      Neumiller & Beardslee attorneys in front of the Waterfront Office Towers:
                                front row: Paul Balestracci, DeeAnne Watkins, Tom Shephard, Saroya
                                Leonardini, back row: Bod Attebery, Dan Truax, Cliff Stevens, Chris Greene,
                                Jim Dyke, Duncan McPherson, Rudy Bilawski, Dan Schroeder, John Stovall,
                                and Eric Nims
    New
Requirements                                by Duncan McPherson and Tom Shephard
     for


                N
                        eumiller & Beardslee is the direct             in Stockton in 1873 and graduated from Hastings
 Agricultural           descendent of the law firm of Ashley &         College of the Law and was admitted to practice
 Waste Water            Neumiller, formed on January 1, 1903,          in 1901. After spending a year winding up
    Page 8      by two Stockton lawyers, Arthur H. Ashley              the affairs of one of the area’s pioneer milling
                and Charles L. Neumiller. Arthur Ashley was            and warehouse companies, in 1902, he went to
                born in Stockton in 1865 and graduated from            work for Arthur Ashley in the District Attorney’s



100
                the University of California in 1887. Following        office.
  Years of      his graduation he went to work for the District
                Attorney of San Joaquin County and shortly                  It was at the end of Arthur Ashley’s term in
 Excellence     thereafter, in 1898, he became the District            office as District Attorney that Arthur Ashley
                Attorney, serving a four-year term that ended in
                1902. Charles L. “Charlie” Neumiller was born                                       continued on page 2 ...
                                            NEUMILLER & BEARDSLEE


... continued from page 1


Neumiller & Beardslee Celebrates
100 Years of Service!
and Charlie Neumiller decided to enter      cial and Savings Bank Building (now       Paroles almost continuously from 1915
into a partnership. They rented five        the Cort Building), located on the        until his death in 1933. George Ditz
rooms across from the courthouse in         Northwest corner of Sutter and Main       was President of the Stanford Alumni
the New Salz Building facing Hunter         Street. In 1966, when the building was    Association and a member of the
Square for a rent of $240 per year,         renovated by the Bank of America, the     University’s Board of Trustees. He
payable in gold. The original lease is      Firm moved to the ninth floor.            also served on the National Board of
currently displayed in our 1903 Con-                                                  the Red Cross, and held memberships
ference Room. In 1903 Stockton was               During the years between 1913        in a number of prominent legal organi-
growing rapidly and was one of the          and 1928, Stockton continued to grow      zations, such as the American Law
larger cities in California. At that time   and Neumiller & Ditz was a part of        Institute. Irving Neumiller was also an
Stockton was also a substantial agri-       many of the important events of the       active member of the State Republican
cultural equipment manufacturing cen-       era. This included the litigation be-     Party and was appointed a member of
ter, as well as a transportation hub and    tween the Holt Manufacturing Com-         the World Trade Center Authority.
agricultural area.                          pany and the Best Tractor Company
                                            that culminated with the formation of          In 1930, Robert L. (“Bob”)
     During that original partnership,      the Caterpillar Tractor Company, and      Beardslee became associated with
Charlie became the attorney for             the bringing of the Western Pacific       the firm, beginning what was to be a
Benjamin Holt, formed the Benjamin          Railroad to the Stockton, ending the      69-year career with the Firm, ending
Holt Company, and was substantially         monopoly of the Southern Pacific          with his death in 1999. Bob was born
involved with the affairs of the Holt       Railroad in this area. Even after the     in Stockton in 1905 and graduated
Manufacturing Company. In 1910,             removal of the headquarters of the        from Stanford Law School in 1930.
when the population of Stockton was         Caterpillar Tractor Company from          Following the death of Charlie
just over 23,000, the original partner-     California to Illinois, members of the    Neumiller, in 1933, George Ditz, Irving
ship was ended by the mutual consent        Firm continued for many years to at-      Neumiller, and Robert Beardslee be-
of the partners. Arthur Ashley contin-      tend the Company’s Board Meetings,        came the core of the firm until the end
ued to practice on his own until his        commuting by train from Stockton to       of the Second World War, when the
death in 1927. Charlie Neumiller con-       Peoria, Ilinois. In 1923 Charlie’s        local economy and the Firm started to
tinued in practice with various associ-     nephew, Irving, joined the firm. Irving   grow. Stockton had not experienced a
ates, including a distinguished former      Neumiller was born in Stockton in         substantial population growth between
judge. In 1913, George A. Ditz joined       1899 and graduated from Boalt Law         1928 and the Second World War, but
the firm. George was born in Stockton       School. Irving became a partner in        the war and the post-war California
in 1889 and graduated from Stanford         1925 and, unlike the earlier partners,    population boom rekindled the growth
University Law School and studied at        was a well-known trial lawyer who         in the Stockton area. Bob Beardslee
Harvard Law School. He became               founded the Firm’s trial practice.        continued the tradition of the earlier
Charlie Neumiller’s partner in 1915                                                   partners as a major force in the Stock-
and the Firm name became Neumiller              The original partners were a re-      ton legal community, and counseled
& Ditz. The name of the Firm contin-        markable group. Charlie Neumiller         many of the major local businesses,
ued unchanged until 1941, when              was not only a prominent business         such as State Savings and Loan Asso-
Robert L. Beardslee became a part-          attorney, but was Chairman of the         ciation, Holt Brothers, Hickenbotham
ner. In 1908, the Firm moved their of-      California Republican Party and a key     Brothers, and Pacific Storage Com-
fices to the Hale Building on Main          figure in the Progressive Republican      pany.
Street. In 1915, the Firm again moved       movement. He was also President
to the sixth floor of the new Commer-       of the Board of Prison Terms and              The Firm has been involved in

                                                              2
                                           NEUMILLER & BEARDSLEE



numerous public works projects af-         growth, the Firm required larger of-      Bilawski, James R. Dyke, John S.
fecting this area, including the New       fices and moved to the fourth floor of    Stovall, Paul N. Balestracci, Daniel J.
Melones Dam, the Stockton East             the then new San Joaquin First Federal    Schroeder, Clifford W. Stevens, and
Water District water treatment plant,      Building, located at 6 South El Dorado    Daniel S. Truax, plus Christopher A.
the Modesto Irrigation District water      Street. Additional growth caused          Greene, a former partner who is now
treatment plant, and the creation of the   the Firm to move to the fourth and        of counsel. Current associate attor-
Altamont Commuter Express. The in-         fifth floors of the Waterfront Office     neys include Rod A. Attebery, Saroya
volvement in these projects was an         Towers, located at 509 West Weber         J. Leonardini, DeeAnne Watkins, and
outgrowth of the Firm’s representation     Avenue, where the offices remain at       Eric J. Nims.
of government entities which started       this time.
with the representation of local water                                                    Over the years, the Firm has
agencies and now also includes cities,          Since the Firm’s formation in        represented many individuals, busi-
other public districts, transportation     1903, the Firm has had a variety of       nesses both small and large, profes-
agencies, and the Port of Stockton.        names, beginning with Ashley &            sional groups, non-profit organizations,
                                           Neumiller until 1915; Neumiller & Ditz    and government agencies of all
    In the late 1960s, the Firm also       until 1941; and Neumiller, Ditz and       types. Although the clients, the type of
started the representation of Real         Beardslee until 1954. The firm grew       businesses represented, and the type
Estate Developers in the areas of land     and gained additional partners and        of work has changed over the years,
development, subdivision development,      names were added until the Firm name      the goal of Neumiller & Beardslee to
and construction activities. The Firm      became Neumiller, Beardslee, Diehl,       provide high quality legal services and
has worked with many developers            Siegert, Glahn, Shephard and Greene,      to maintain a high level of service to its
on hundreds of subdivisions, both resi-    in 1966. In 1975, the Firm name was       clients and to the community remains
dential and commercial, located in         shortened to Neumiller & Beardslee        the same.
California and other states, including     for the convenience of both the
such local projects as Lincoln Village     members of the Firm and the Firm’s
West, Quail Lakes, Venetian Village        clients. In 1981, the Firm incorporated
and Venetian Bridges, Spanos Park          under the name of Neumiller &
East and Spanos Park West,                 Beardslee, a professional corporation.
Brookside Estates, and the Mountain
House new town development.                    The nine existing principals of
                                           the Firm are: Thomas J. Shephard,
    In 1976, after another period of       Duncan R. McPherson, Rudy V.




                                    CURRENT AREAS OF PRACTICE
     Agricultural Law                           Environmental                           Public and Private Finance
     Bankruptcy                                 Health Care                             Real Estate Development
     Business and Commercial                    Intellectual Property and               Real Estate Law
     Church                                        Information Technology               Subdivision Development
     Community Associations                     Land Use and Development                Tax, Trusts, Probate and
       (Homeowner Associations)                 Litigation                                 Estate Planning
     Construction                               Municipal & Public Agency               Telecommunication
     Eminent Domain                             Natural Resources                       Transportation
     Employment & Labor                         Personal Injury                         Water



                                                             3
                                         NEUMILLER & BEARDSLEE



   Happy                                    Visit N&B’s Booth at Ag Expo
 Anniversary!
N&B employees have nearly 500 years of
service combined! Anniversaries being
celebrated this year are:

Tom Shephard, Sr.                   40
Duncan McPherson                    36
Rudy Bilawski                       34
Jim Dyke                            30
Chris Greene                        29
John Stovall                        28
Jon Beckler                         27
Kellie Maghoney                     24
Paul Balestracci                    19      Neumiller & Beardslee will again sponsor a booth at the annual Ag Expo
                                            held each year at the San Joaquin County Fairgrounds. Be sure to stop by
Rebecca Dela Cruz-Tiongco           17
                                            N&B’s booth to learn more about us and enter to win a gift basket!
Elvia Trujillo                      16
Barbara Walkauskas                  15
Dan Schroeder                       14
Jean Knight                         14
                                            N&B’s 100th Birthday Celebration
Cliff Stevens                       13
Dan Truax                           12
Diane Kohn                          11
Debbie Supnet                       11
Guadalupe Lua-Zepada                11
Carolee Barritt                     10
Nick Kouvaris                       10
Annette Soto                         8
Kay Slahtasky                        8
Cary Nunes                           6
Rod Attebery                         5
Eric Nims                            5
Inez Rael                            5
Lynda Montgomery                     4
                                            Tom Shephard makes a toast at the celebration of the firm’s 100th birthday.
Saroya Leonardini                    4      Tom told about some of the first clients of the office in 1903. Employees
DeeAnne Watkins                      3      enjoyed cake and sparkling cider to celebrate!

                                                       4
                                            NEUMILLER & BEARDSLEE


... continued from back page

Waste Water                                    N&B People in the News
Central Valley Board, including an es-
timated 500 additional personnel to         Tom Shephard has been reelected           and was also a speaker at a recent
oversee such a program.                     for another term on the Board of          seminar on Collection Law.
                                            Directors of the Yosemite Associa-
     Following a board hearing to con-      tion. He first went on the Board on       Rod Attebery is coaching Lincoln
sider the waiver, the Central Valley        November 12, 1973; this next year will    High School Girls Varsity Soccer. First
Board voted 5-1 to renew the agricul-       be 30 years of service to Yosemite        season was 2002; and is also the
tural industry’s exemption from the         Park. The Yosemite Association is a       co-chair of the Stockton Chapter for
waste discharge requirement. The            citizens membership support group         Ducks Unlimited.
board rejected staffs’ recommendation       for Yosemite. It publishes books and
to renew the waiver for three years         other materials and sells them in         Dan Schroeder spoke to the Em-
and rejected the environmentalist plea      the Park. It contributes funds to the     ployer Advisory Group regarding
for setting specific clean water targets.   Park to support the Interpretive Ser-     Employment Law.
Instead, the board renewed the waiver       vices at the Park and also provides
for two years and added a condition         direct services such as seminars at the   Eric Nims has become a member of
that dischargers take steps to voluntar-    Park.                                     the Board of Directors of the
ily begin monitoring and reducing irri-                                               O’Connor Foundation.
gation and storm water from approxi-        Cliff Stevens has been appointed to
mately 25,000 farms. The two-year           the Insolvency Law Committee of the       Jim Dyke was elected President of
extension also includes a plan to en-       Business Section of the State Bar of      the Navy Council, Navy League of
courage farmers to form watershed
                                            California for a three year term. Cliff   the United States. Jim also continues
groups to collectively address water
                                            was chairman for the 2002 American        to speak to various groups regarding
quality issues. As an incentive to the
                                            Cancer Society’s Relay of Life event      estate planning issues.
watershed approach, farmers maintain
confidentiality of records and may
avoid waste discharge requirements.
                                                     Contributors to                        Conference Call
    Board members intend to meet in
March to develop a ten-year plan to re-
                                                       this Issue                                Staff
duce runoff and consider ordering an
environmental review of agricultural               Thomas J. Shephard, Sr.                    Paul Balestracci
runoff.                                             Duncan R. McPherson                       Dan Schroeder
                                                      Rod A. Attebery                          Cliff Stevens
    In a separate but related action,                                                       Barbara Walkauskas
                                                        Eric J. Nims




                                                   100
the board approved a water quality
plan for dairies. Dairies will now be
required to either apply for a formal




                                                   Years of
waste discharge permit or apply for
new individual conditional waivers
through a program that includes a third
party certification of compliance with
environmental regulations.




                                                  Excellence
For further information, including the
details of the two-year renewal of the
agricultural waiver or winery or dairy
requirements, see www.swrcb.ca.gov/
rwqcb5/index.html or contact this office.


                                                              5
                       NEUMILLER & BEARDSLEE




New Laws for Construction Defects

                       O
 by Duncan McPherson              n January 1, 2003 construc-        including an insufficient supply of
     and Eric Nims                tion dispute resolution in         housing, a lack of affordable housing
                                  California became subject to       and skyrocketing housing costs. Cali-
                       sweeping legislative reform. Following        fornia is home to 18 of the top 25 least
                       years of political rancor, California’s       affordable housing markets in the
                       legislature driven by an acute housing        nation and the medium price of a
                       shortage coupled with a crises in the         single-family detached home has risen
                       insurance industry crafted Senate Bill        21% in 2002 to a record $323,700.
                       800 designed to radically alter the           This lead to an alliance of groups seek-
                       process by which construction defect          ing to improve the supply of housing
                       disputes are resolved.                        supported by local government and
                                                                     labor groups. At the same time trial
                       BACKGROUND                                    lawyers were also trying to get the
                                                                     legislature to overturn a court decision
    “The Bill
                           Prior to SB 800, what constituted a       favorable to the building industry
 creates a host        construction defect under California          called, Ass v. Superior Court of San
                       law was never completely clear. For           Diego. In an effort to improve
     of new            decades, courts relied on various             California’s housing situation, Senate
 requirements          theories of contract and tort law,            leaders put the issue of construction
                       including strict liability, to resolve con-   dispute resolution at the top of their
   that seem           struction dispute issues. With the ad-        2002 agenda and brokered a deal be-
                       vent of large numbers of homeowner            tween the California Building Industry
   certain to          associations, condominiums and other          Association and the trial lawyers
 change most           attached housing and class-action             which resulted in Senate Bill 800.
                       lawsuits all of which contributed to          Governor Gray Davis signed the bill
 builders’ daily       large scale claims homebuilders soon          into law on September 20, 2002.
                       complained of skyrocketing litigation
    business           and insurance costs.                          SENATE BILL 800
  operations.”
                           The issue of insurance, in fact, has           By its terms, the new law applies
                       become critically acute. The insur-           to all new residential homes for which
                       ance industry in general has had major        a sales contract is entered into on or
                       problems and those general problems           after January 1, 2003. The bill has
                       coupled with construction defect              no limits on the size of builders subject
                       claims and other liability issues such as     to the act and anyone who sells new
                       mold has made builders liability insur-       residential housing is covered even if
                       ance extremely expensive, subject to          that person only builds and sells an
                       numerous exceptions and in some               occasional house. The bill does not
                       cases unavailable. The California             apply to condominium conversions or
                       Building Industry Association has             to re-sales. The Bill creates a host of
                       claimed that these problems have al-          new requirements that seem certain
                       most eliminated the construction of           to change most builders’ daily business
                       condominiums and other attached for           operations including changes in house
                       sale housing in California. This has          sales contracts, construction contracts,
                       contributed to a series of problems,          and subcontracts, the materials given


                                           6
                                            NEUMILLER & BEARDSLEE



to home buyers and home buyer               done under a rigorous schedule. Given          other home warranty program be-
manuals. SB 800 will also require           this, it seems many builders, particu-         ing used to determine how it will
training for sales and customer service     larly builders which do not have a             be used with SB 800. Since these
personnel.                                  large staff may find it practically im-        insurance backed warranties do
                                            possible to take advantage of SB 800’s         not match any of the warranties
Among other things, the new law:            right-to-repair privileges. The new law        set up in SB 800 they raise special
                                            also allows builders to “opt-out” of its       problems as to how they fit into the
    1. Creates 46 new standards for         pre-litigation procedure and substitute        SB 800 warranties.
    home construction (so called            its own. However, little guidance is
    “functionality standards”) by           offered relative to the requirements of        4. Establish a claims procedure
    which defects in residential build-     any alternative builder-drafted proce-         for use by homeowners alleging a
    ings are defined and determined.        dure. Lastly, in some instances the            construction defect and clearly
    Technical violations of building        new law greatly increases the amount           separate normal requests for war-
    codes in themselves are no longer       and type of materials, which must be           ranty service from formal claims
    the basis for a construction defect     given to a homebuyer at the time               under SB 800.
    claim.                                  sales documents are executed. Such
                                            materials include a copy of Part 2 of          5. Determine the required lan-
    2. Creates new statutes of limi-        Division 2 of the Civil Code (amounting        guage to be inserted in each deed
    tations for various defects with 10     to some 300 pages).                            given in a home sale as well as any
    year statute of limitations for stan-                                                  other material that needs to be
    dards not having shorter dates.         BUILDER REQUIREMENTS                           recorded to meet SB 800 require-
                                                                                           ments.
    3. Establishes a new one year               Many builders will find SB 800
    “fit and finish” warranty implied in    somewhat bewildering in its scope              6. Register the agent for receipt
    every new home sale.                    and draftsmanship. Contractors and             of claims with the California Sec-
                                            developers have no choice but to               retary of State for each entity that
    4. Offers a “non-adversarial            change the way they do business in             sells houses or other residential
    pre-litigation procedure” under         light of the new law. This means,              property.
    which builders have the right to        among other things, builders need to:
    repair a defect before a lawsuit is                                                Neumiller & Beardslee’s attorneys
    initiated.                                  1. Revise their sales contracts        have analyzed the provisions of SB
                                                to reflect new materials given to      800 and can assist developer and con-
    5. Creates new affirmative                  buyers, various required notices       struction clients in revising their forms
    defenses for builders faced with            and information, new warranty          and procedures to conform with the
    construction defect claims.                 and warranty disclaimer provi-         new law.
                                                sions, adjust dispute resolution
    6. Limits the damages a home-               systems, etc.
    owner may recover.                                                                 Duncan McPherson received his J.D.
                                                2. Change construction con-            from Boalt Hall, UC Berkeley. His
     There are some major problems              tracts and subcontracts with sub-      practice concentrates on community
for builders under SB 800. Under the            contractors to include such parties    association law, subdivision law, and
new law’s optional “non-adversarial             in any warranty or repair program.     the organization of real estate and
pre-litigation procedure,” a builder is                                                development entities.
given time to inspect and repair a              3. Renew their insurance prod-
claimed defect, during which period             ucts to determine compatibility        Eric Nims received his J.D. from King
the homeowner cannot bring a lawsuit            with the new law. This should          Hall, UC Davis. His practice includes
against the builder. However, the pro-          include a review of any HBW            real property acquisition, development,
cess by which a builder can inspect             2-10 program, Professional War-        and financing, as well as business entity
and repair is complex, and must be              ranty Service Corporation, or          formation and counseling.


                                                               7
                                              NEUMILLER & BEARDSLEE




New Requirements for
Agricultural Waste Water
T         he California Water Code re-
          quires that any person dis-
          charging waste, or proposing
to discharge waste must submit a
                                              regional board waiver policies. A
                                              regional board can also waive the need
                                              to issue waste discharge requirements
                                              as to a specific discharge or a specific
                                                                                             enforce existing waivers and/or
                                                                                             review or terminate waivers every five
                                                                                             years.

report of waste discharge to the appro-       type of discharge if the waiver is not              As a result of these changes to the
priate regional board. A discharge,           against public interest, as provided by        Water Code, the conditional waiver
under the California Water Code,              section 13269 of the Water Code.               that applied to the discharge of
would include irrigation runoff, storm                                                       irrigation return waters and storm run-
water runoff, waste water produced                On October 6, 1999, Senate Bill            off from irrigated land in the Central
from wineries, and runoff from dairies.       390 was signed into law revising               Valley would have sunset on January
However, no report need be filed if the       Section 13269 requiring each regional          1, 2003, unless renewed by the board.
requirement to do so is waived.               board to take certain actions. These           After 20 years of an existing waiver,
                                              actions included: review of the terms,         the board was faced with renewal or
    There are two basic types of              conditions and effectiveness of each           allowing the waiver to terminate lead-
waivers issued by regional boards.            type of waiver; review waiver policies         ing to waste discharge requirements
The first type of waiver is a waiver for      and individual waivers by January 1,           for agricultural operation. A regula-
a specific discharge. The second type         2003 (failure to renew waivers would           tory program of this nature would
of waiver is a waiver for a type of           result in automatic termination); issue        require a major undertaking of the
discharge. There presently are over           waste discharge requirements for
45 types of discharges covered by             those waivers that have expired;                                 continued on page 5 ...



NEUMILLER & BEARDSLEE                             Principals                    Associates                          Please note that the infor-
A Professional Corporation                                                                                          mation provided in the
Attorneys and Counselors                          Thomas J. Shephard, Sr.       Rod A. Attebery                     CONFERENCE CALL is

                                                  Duncan R. McPherson           Saroya J. Leonardini                a summary of current legal
Founded as Ashley & Neumiller, January 1903                                                                         developments. The articles
                                                                                DeeAnne M. Watkins
Fifth Floor Waterfront Office Tower II            Rudy V. Bilawski                                                  are not intended to be ex-
509 West Weber Avenue                                                           Eric J. Nims                        haustive discussions of
                                                  James R. Dyke
P.O. Box 20                                                                                                         the issues they address.
Stockton, California 95201-3020                   John W. Stovall               Of Counsel                          They are not intended, nor
Phone: (209) 948-8200                             Paul N. Balestracci
                                                                                                                    should they be used, to de-

Fax: (209) 948-4910                                                             Christopher A. Greene               termine rights and liabili-
                                                  Daniel J. Schroeder                                               ties under particular facts.
From Modesto:                                                                   Legal Assistants                    All articles may not be re-
                                                  Clifford W. Stevens
Phone: (209) 577-8200                                                                                               produced without written
Fax: (209) 577-4910                               Daniel S. Truax               Jon R. Beckler                      permission of the authors.

www.neumiller.com

NEUMILLER & BEARDSLEE                                                                                               PRSRT STD.
P.O. Box 20                                                                                                        U.S POSTAGE
Stockton, CA 95201-3020                                                                                                  PAID
ADDRESS SERVICE                                                                                                    PERMIT #690
REQUESTED                                                                                                         STOCKTON, CA

				
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Description: Bank of America Community Projects Stockton California document sample