Los Angeles Architects & Engineers

Drafting Contracts & Designing Legal Strategies in Southern California

As a design professional, you use your vision, technical knowledge and skills to create sound structures that please your clients. At the Law Office of Steven R. Lovett, we use our vision, technical knowledge and skills to create a sound legal strategy that pleases our clients.

Steven R. Lovett has been representing design professionals for over 40 years. We leverage his profound knowledge of the issues facing architects and engineers in an increasingly complicated construction law landscape. By focusing on preventive law and teaching our clients invaluable lessons about proactively protecting their interests, we are often able to avoid costly litigation.

Questions About Contracts?

A contract between you and your client sets out the terms of the project. Under California law, both architects and engineers are required to use a written contract when providing professional services. While many design professionals use a standard form, it may be in your best interest to have your lawyer draft a contract or go over any boilerplate contract language you have chosen to use. A contract that holds up is one that is specific about the scope of the project and contains unambiguous language. We are here to make sure that your contract is comprehensive, fair and will be upheld in a court of law.

The following is a summary of some of the laws affecting architects and engineers. Please also visit the following pages:

• Requirement for Private Payment Bond or Security on Large Projects
• Conditioning Payment by Owner: Pay When Paid Clauses
• Attempts to Impose Liability for Construction Supervision
• The Requirement of a Written Contract

Limited Effect of Certification

Under Business & Professions Code § 5536.26, part of the California Architect Practices Act, the use of the words "certify" or "certification" by a licensed architect in the practice of architecture constitutes an expression of professional opinion regarding those facts or findings that are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied. The use of the word "certify" or certification also is not intended to alter the standard of care ordinarily exercised by a licensed architect.

On a related note, in the pivotal case of Gagne v. Bertran, 43 Cal.2d 481 (1954), the California Supreme Court held that design professionals have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility but can expect only reasonable care and competence. The customer of the design professional purchases service, not insurance.

Partnership with Non-Architects

The Architectural Practices Act does not prevent an architect from forming a partnership with persons who are not architects as long as the name of the architect appears as the architect on all instruments of service. Also, the unlicensed member of the partnership cannot be designated as an architect. (California Business & Professions Code Section 5535.2).

Ownership of Plans and Copyright Protection

Both architectural drawings and completed architectural works are subject to copyright protection under the Federal Copyright Act. Under the Act, the owner of the copyright has exclusive rights to reproduce the copyrighted work and to prepare derivative works based upon the main work. A successor developer was found liable for copyright infringement for copying the footprint and elevations of the previous landowner's architect in Nelson-Salabes, Inc. v. Morningside Development LLC, 284 F.3d 505 (4 ^th Cir. 2002)

Liability for Subsequent Changes to Plans

A licensed architect who signs and stamps plans, specifications, reports, or documents is not responsible for damage caused by subsequent changes to or uses of those plans, specifications, reports, or documents, where the subsequent changes or uses, including changes or uses made by state or local governmental agencies, are not authorized or approved in writing by the licensed architect who originally signed the plans, specifications, reports, or documents, provided that the written authorization or approval was not unreasonably withheld by the architect and the architectural service rendered by the architect who signed and stamped the plans, specifications, reports, or documents was not also a proximate cause of the damage (California Business & Professions Code Section 5536.25(a)).

Questions About Liability?

Construction defects and professional negligence are the most common reasons architects and engineers face liability claims. We have vast courtroom experience in defending against construction defect and other liability claims and will aggressively fight for a satisfactory settlement. Whenever possible, we will go to mediation or arbitration.

Prompt Payment Statutes

On a public work project, California Civil Code Section 3320 requires a public agency to pay a progress payment within 30 days of receipt of a written demand and the final retention payment within 45 days of receipt of written demand. If the payment is not timely paid, there is a 1 ½ percent penalty per month and attorney fee liability. The entity can withhold up to 150% of the disputed amount in the event of a good faith dispute.

Public Contract Code Section 10261.5 requires a state agency to pay the legal rate of interest if there is no prompt payment within 30 days.

Attempts to Impose Liability for Construction Supervision

Oftentimes, in the shotgun approach many law firms employ concerning construction defect or professional negligence ("malpractice") litigation, an architect or engineer may be named for not noticing a construction defect in the course of construction. This exhibits a misunderstanding of the scope of most types of construction supervision or administration. A California statute, Business and Professions Code Section 5536.25(c) recognizes that "construction observation services does not mean the superintendence of construction processes, site conditions, operations, equipment, or personnel, or the maintenance of a safe place to work or any safety in, on, or about the site." Rather, "construction observation services" means "periodic observation of completed work to determine general compliance with the plans, specifications, reports or other contract documents."

Business and Professions Code section 6737.4 permits a licensed contractor to prepare "electrical or mechanical shop or field drawings for work which he has contracted to perform." It thus clearly contemplates that civil engineering plans for the basic structure may properly be prepared omitting all mechanical and electrical details which may be supplied by the mechanical or electrical contractor. Thus, in the California case of Wyner v. Buxton (1979) 97 Cal.App.3d 166, the court held that the engineer was not responsible for the lack of drainage detail, since those details were to be supplied by the engineer's shop drawings.

Contact Us for a Free Phone Consultation

As a design professional, you need assistance and representation for legal issues ranging from insurance and intellectual property to liens and liability. Our Los Angeles construction lawyer has the reputation for efficiency, experience and ethics that has gained the trust of architects and engineers throughout Southern California.

If you are in need of defense against a liability claim, or you have other questions about the unique legal matters you encounter as an architect or engineer, call (888) 577-1518 or contact a Los Angeles construction attorney by e-mail.