Roxanne Minott

Liability of Law Firms for Defective Chairs

In New Jersey, a state appeals court recently ruled that a law firm was not negligent when a client fell from a chair. In May 2010, a man and his wife visited a law firm for a deposition. The husband was seated in the chair for about ninety minutes, after which time he leaned back, and fell on the floor. As a result, he suffered an injury.

The couple argued that the law firm was responsible for “maintaining the chair in a safe condition” and neglected to do so by having the chair at a low-tension setting. However, the court said that since the man had been sitting in the chair for about ninety minutes, he had adequate time in which to realize that the chair had a tendency to tilt, and to understand its tension setting.

In addition, according to a plaintiff’s expert, the chair was not defective in its design or manufacture, but the owner of the chair has a duty to reset the tilting mechanism prior to each use. The court went on to say that it would be unjust to land-occupiers and of no benefit to the public to enforce a duty on the part of the owner of the chair a duty to warn of its propensity to move in a certain way. Therefore, the negligence claim was dismissed.

I’m inclined to agree with the decision because the chair wasn’t actually defective, but only appeared to be defective to the person who was sitting in it. It is unfortunate that he was injured when he fell out of the chair, but given the fact that he was using the chair for some length of time, he had to have realized that the chair had a tendency to tilt.

In another similar case, the outcome was very different because the chair in question actually was defective. In 2003, when a man met with a personal injury attorney at a law firm in Florida, his chair collapsed, injuring him. A jury found in his favor in 2009, and awarded him $2.2 million. While the law firm was legally responsible for one-third of the total, the retailer from which the chair was purchased was legally responsible for two-thirds.

However, that verdict was reversed by an appellate court, which found in favor of the law firm because causation had not been shown. But in October 2013, that decision was reversed by the Florida Supreme Court, which reinstated a “substantial” verdict for the plaintiff, stating that causation was an issue of fact to be decided by the jury.

In support of that verdict, a plaintiff’s expert stated that an inspection of the chair should have exposed the “weak joint” in the chair that was said to be the cause of the collapse, and that businesses should test chairs every six months as a matter of standard procedure. The law firm’s expert held a different view, which was that the sole test to determine whether a chair is defective is to sit in the chair, and that is the only test that would have exposed the defect that caused the plaintiff’s injuries.

In deciding in the plaintiff’s favor, the Supreme Court said that the district court re-evaluated the evidence without permission, and used its own assessment of the evidence in lieu of that of the jury. I tend to agree with this decision also because it appears as though the “weak joint” in the chair was to blame for the chair’s collapse, and the plaintiff could not have realized that the chair had a weak joint.  This case is very different from the previous one in which it is likely that the plaintiff realized that the chair had a tendency to tilt after having sat in it for ninety minutes.  Thus, only the chair in the second case was defective.

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Roxanne Minott

Counsel for the Indigent

The indigent have, historically, received inadequate legal representation, and recently, there was a class-action lawsuit that claimed New York State had failed to offer sufficient legal defense to the poor in many counties. Governor Andrew Cuomo settled the lawsuit by promising to make larger payouts for improved public defenders’ offices.

According to the settlement, changes are slated to occur in four upstate counties, including Ontario, Onondaga, Schuyler, and Washington, as well as Suffolk County on Long Island. New York City remains unaffected by the decision. The settlement has been described by civil rights advocates as being groundbreaking, and a model for other counties beyond the city limits.

Terms of the Settlement

In addition to paying the cost of hiring additional defense attorneys, investigators, and expert witnesses, the state has agreed to make improvements in the quality of the defense for the poor in the five counties. Specifically, it has said it would create standards for the number of cases managed by each public defense lawyer, and that resources would be provided to lessen caseloads so that they would become more manageable.

Furthermore, the state promised to ensure that people who are unable to afford attorneys, have representation, in lieu of allowing county governments to assume this role.

Implications for the Future

The settlement is a step in the right direction, and one that serves to address some of the inequities in the justice system. Currently, the public defenders are extremely overworked; for instance, in Suffolk County, each Legal Aid attorney was managing 500 to 600 cases, and in Onondaga County, each public defender spends an average of four hours with their clients, and under an hour finding out the facts of a case. As a result of the settlement, this will likely change for the better, and legal aid attorneys will have a more reasonable caseload with time to devote to each client.

According to the Sixth Amendment, everyone has the right to legal representation. However, states were only forced to provide defense attorneys to the indigent who were accused of committing serious crimes, when the 1963 case of Gideon v. Wainwright was decided.

We’ve certainly made improvements to the justice system since Gideon. And the settlement, which is scheduled to last seven and one-half years, mandates that within 20 months, the state guarantee that all indigent defendants in the five counties be represented by defense attorneys at their initial appearance. And after ten months have elapsed, each public defender’s caseload will be required to remain at the level determined by the state.

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Matthew Izzi

Prosecutors Must Stop Sending Innocent People to Jail

This time last year, for the first time in history, a prosecutor was jailed for knowingly sending an innocent man to jail, highlighting a new trend in criminal justice.

In recent years, there has been a steady steam of stories surfacing about instances of actual innocence and wrongful convictions. While these stories are generally both sobering and uplifting, many fail to emphasize that in many of these cases, the prosecutor—the individual sworn to protect the interests of “the People”—commits some form of misconduct.

A normal reaction to hearing about a prosecuting attorney playing a role in incarcerating an innocent person raises questions like “are they disciplined?” or “are they liable to be sued?” Surprisingly, the answer to the first question is “rarely” and to the second is “nope.” In fact, a recent study shows prosecutors withholding evidence are almost never disciplined, and a couple of years ago, a case called Connick v. Thompson has all but ensured prosecutors will remain absolutely immune from lawsuits arising out of cases they prosecute.

However, something interesting—and incredibly groundbreaking—occurred last year: a former prosecutor (he was serving as a judge at the time of his conviction) was sentenced to 10 days in jail as a result of lying to the court in a case he had prosecuted about evidence he was intentionally withholding from the defense.

While this story is not exactly the hot news of the decade, it is demonstrative of a sea change in the criminal justice system. For example, over the last few years, California has seen a handful of propositions that either free individuals who were incarcerated based on certain offenses covered by an overly harsh three strikes law, or even reduce certain felonies down to misdemeanors.  And California is not alone: Oregon and Alaska have recently joined the ranks of states that permit recreational use of marijuana.

While the connections between a convicted prosecutor and the decriminalization of certain acts or substances may seem remote, overall the attitude of the American people seems to be clear. As a whole, many seem to be open minded, saying farewell to the days of the “war on drugs” and cold-hearted “law and order.”

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Matthew Konecky

Can Police Stop You for the Color of Your Car?

Does the color of your car match the description on your registration? If not, you may be worried that the police could pull you over. A recent ruling by the Florida Supreme Court, however, has established that this scenario is not sufficient to create reasonable suspicion.

In State v. Teamer, an officer witnessed Teamer driving a green Chevrolet. After running the license plate through the DHSMV database, as is customary for him while on patrol, the office discovered that the vehicle was registered as a blue Chevrolet. Based on this fact, the defendant was stopped and arrested.

The Florida Supreme Court stated “[I]nnocent behavior will frequently provide the basis” for reasonable suspicion. Sokolow, 490 U.S. at 10; see also Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (acknowledging this fact and recognizing that an officer can detain an individual to resolve an ambiguity regarding suspicious yet lawful or innocent conduct).

“[T]he relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10 (internal quotation marks omitted).

In the case of the Chevrolet, the State conceded that “the failure to update a vehicle registration to reflect a new color is not in specific violation of a Florida law.”

Ultimately, the Court held that there is no suspicion based on the vehicle color alone.

What does this mean for you? This ruling means that you should always be aware that the police are running your plates, registration, and licenses when you are on the road. Keep your license up to date and register your vehicle every year. If you change the color of your car, let the DMV know. Regardless of the recent ruling, the police will certainly find the color discrepancy to be suspicious.

For information about the Law Offices of Matthew Konecky, visit

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Roxanne Minott

Mandatory Retirement for Partners

Mandatory retirement, or enforced retirement, is the age at which people are required by industry standards or by law to retire from employment. There may be valid reasons for such a requirement—specifically in jobs that involve physical labor or physical hazards. However, in other professions, mandatory retirement is viewed unfavorably, and can even be perceived to be a form of age discrimination.

Under federal employment law, mandatory retirement is generally prohibited, as stated in the U.S. Code of Federal Regulations commenting on the Age Discrimination in Employment Act, which states:  “…one of the original purposes of this provision, namely, that the exception does not authorize an employee to require or permit involuntary retirement of an employee within the protected age group on account of age, …an employer can no longer force retirement or otherwise discriminate on the basis of age against an individual because (s)he is 70 or older.”

Despite the federal law against mandatory retirement, it is unclear whether this requirement applies to partners at law firms and accounting firms. The Equal Employment Opportunity Commission (EEOC) is currently investigating the mandatory retirement policy at Deloitte, a firm specializing in accounting and financial services. At Deloitte, the mandatory retirement age for partners is 62, and the American Institute of CPAs is trying to dissuade the EEOC from filing a lawsuit. The issue is whether partners are employees to whom the age discrimination law applies. The nature of the investigation suggests that there could be implications for law firms that still enforce mandatory retirement ages for their partners. Nearly half of the largest law firms still have such policies in place.

It has been said that the EEOC will likely consider partners at large law firms to be employees because they have little or no influence on the way in which the firm is managed. These firms are very different from small law firms with just a few members. Therefore, firms that enforce mandatory retirement policies could be held liable for age discrimination. However, there is no precedent in place because the previous EEOC claims filed against two law firms alleging mandatory retirement resulted in settlements.

I think it would be best for all concerned if firms were to do away with mandatory retirement because partners can be productive, and contribute, even at an advanced age. They are likely to have a large book of business, and to be very knowledgeable and experienced; firms can only benefit from their vast knowledge. Furthermore, firms could avoid anymore EEOC probes or potential claims of age discrimination stemming from mandatory retirement.

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Matthew Izzi

Why First Amendment Hype Is Usually Bogus

Reading any given newswire can quickly highlight a fundamental misunderstanding about the First Amendment. Confusion has been rampant for issues surrounding the Westboro Baptist Church, the Hobby Lobby debacle, and recent issues in Houston.

The problem is, for these and similar cases, the First Amendment generally shouldn’t even be at issue.

Consider the full text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This has been interpreted to extend to the states and localities, meaning any action under the color of law could potentially be considered abridging free speech or free exercise. This is all well and good; speech, religion, whatever—subject to a few well-settled exceptions—we typically accept it all.

Confusion arises as to when the First Amendment applies. Here are two questions to ask before kicking and screaming about the First Amendment, which should save us all the headache of reading a sensationalized piece in our local op-ed.

1. Is There a Government Action Affecting Speech? This one is pretty simple. Whenever the law, a law, or law enforcement infringes upon someone’s free speech rights, start thinking about the First Amendment. But when someone hurts someone else’s feelings, or uses a purely legal process for the purposes of investigating potential misconduct, such as in Houston, the first place we all jump to should not be the First Amendment.

Remember the government is allowed to control or compel certain things with respect to speech. If we’re all about to start kicking and screaming over a pastor’s First Amendment rights to be sheltered from subpoena powers, but be completely okay with the “qualified” privilege journalists enjoy after Branzburg v. Hayes and In re Miller, we should all spend some CLE time learning what the First Amendment is really around for.

2. Is There a Protected Party or Liable Party?

Another important yet frequently overlooked aspect of the First Amendment is whether the party is entitled to protection. The most obvious example is a public employee, where by virtue of being such, their speech rights with respect to matters of public opinion, are inherently different from say, lying or speaking in a way that would substantially interfere with their duties.

In Snyder v. Phelps, the Supreme Court sort of had to tackle this issue, perhaps largely by virtue of a court decision for a large amount of damages becoming a crux of the analysis. In any event, the Court was steadfast—the First Amendment shielded the church from liability.

While this should not be read in any way as saying the Westboro Baptist church suit should not have been brought, it’s worth mentioning that the case was largely fueled by hype and outrage. While it’s precedent has now made the First Amendment stronger on the speech side, that same type of outrage has ostensibly weakened the First Amendment in the context of religious exercise in a different case.

The take-away is this: it’s easy to point fingers and cry “free speech” or, on the other hand, “you don’t have the right the say that!” But at the end of the day, the Constitution, and all of us, would be better served if we sat back and thought long and hard about whether the First Amendment should even be implicated.

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Matthew Konecky

Florida Challenges Red Light Camera Tickets as Unconstitutional

Red light camera tickets are a hot button issue across the country. I can tell you specifically in South Florida the Courts have been back and forth on the issue…until now. The 4th District Court of Appeal for the State of Florida recently issued an Order challenging the issuing of the tickets as unconstitutional per the Florida Statutes and Florida Constitution. This well thought out holding may be key to knocking out these types of cases in many other jurisdiction.

In order to understand the Court’s holding in City of Hollywood v. Arem, we must understand how this system works. Municipalities or counties outsource to a third party, for-profit vendor, the right to issue traffic citations for those who run red lights. Cameras are placed at intersections and record traffic patterns. When a vehicle enters a red light a picture is taken of the vehicle’s registration. Often times a video of the violation is taken. Then the third party vendor, in this case it is American Traffic Solutions, reviews the video, issues a “notice of violation” and sends the notice to the registered owner of the vehicle. If the owner of the vehicle does not pay the “notice of violation” within the specified time period, the third party vendor creates a citation for the municipality’s traffic infraction enforcement officer to sign. At that time the owner, whether driving or not, is issued a Uniform Traffic Citation subjecting them to points, fines, and court costs.

In Arem, the court raised three key issues:

  1. Does Florida Statute authorize a municipality to delegate a private vendor to issue Uniform Traffic Citations?
  2. Does Florida permit a traffic infraction officer to delegate a non-governmental entity the statutory duty to transmit the citation to court?
  3. If the answer is in the negative, is dismissal appropriate.

The 4th DCA, addressed issue number one and held No, Florida Statutes does not authorize a municipality to delegate a third party for profit vendor to issue a Uniform Traffic Citation. The 4th looked to the plain meaning of the statutes and stated “only law enforcement officers and traffic enforcement officers have the legal authority to issue citations…” While Florida statutes do allow cities to delegate the review of information, they don’t have authority to issue the citations. The court looked at America Traffic Solutions found that they: initially decide which cases to review, they obtain the necessary information to complete the citation, they create the citation, and issue the citation. The traffic infraction enforcement officer for the municipality only “acquiesces to the vendor’s decision to issue the citation.” As such, they answered the first question in the negative.

Holding that the cities do not have the authority, they answered question three by stating Dismissal of the infraction is appropriate. Having ruled as such they did not address the second question.

I believe this ruling, spells out to other jurisdictions that these vendors are not just being delegated the duty to review the camera footage. They are actually acting as a law enforcement agency, which I am sure in many jurisdiction is a violation of local statutes, ordinances, or local constitutions.

For information about the Law Offices of Matthew Konecky, visit

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Roxanne Minott

Representation of Unaccompanied Immigrant Minors

There is an acute need for legal representation of unaccompanied immigrant minors, who have no family members or guardians to offer them protection. They have no knowledge of the law and the legal process, and the English language. In addition, they do not have the benefit of counsel appointed by the Immigration Court, as is the case in other courts.

If a child has been abused, abandoned, neglected, persecuted, or has been the victim of human trafficking, or a crime, that child may be eligible for relief from removal to their home country, and may be able to remain in the U.S. Eligibility can also arise due to a relative’s legal status. However, they are more likely to be successful in their petition for relief from removal if they are represented by an attorney in immigration proceedings.

There is a national nonprofit called Kids in Need of Defense (KIND) that finds attorneys to represent immigrant minors on a pro bono basis. The volunteer attorneys are well prepared for the task of representing unaccompanied minors in Immigration Court because KIND engages in recruiting, training, matching, and mentoring of the attorneys.

According to KIND, each year, there are thousands of children who arrive in the U.S. without a parent or guardian, and who have no representation in immigration proceedings. Although they may be eligible for, and in need of, U.S. protection, they are often removed to their home countries, where their lives may be in great peril.

Furthermore, the federal government has taken steps to provide funding for legal aid to benefit unaccompanied immigrant children. In an unprecedented move, the Obama administration is expending $4 million on attorneys to represent unaccompanied immigrant children in deportation proceedings. This marks the first time that the office that supervises programs for unaccompanied immigrant children will give funds for legal counsel.

Furthermore, the federal government has made grants to two organizations that are included in a larger $9 million project that has as its objective the provision of attorneys for 2,600 children. The grants were made in response to a dramatic increase in the number of unaccompanied Central American children who arrived at the border of the U.S. and Mexico this year; the number was in excess of twice the amount last year. Several of the children were trying to escape violence in their home country.

Almost 60,000 unaccompanied immigrant children arrived at the border this year, and the majority of them do not have attorneys. They are detained by federal authorities, after which they are put in shelters that are under the supervision of the Department of Health & Human Services. They remain in the shelters until they are allowed to be under the care of a relative or sponsor in the U.S. They are then told to appear in Immigration Court on a certain date on which deportation proceedings are held.

Advocates for immigrants have been increasing their efforts to recruit attorneys to represent the unaccompanied immigrant minors. Having an attorney can mean the difference between being allowed to remain in the U.S., and being removed to your home country, where you will almost certainly face a life of danger and far fewer opportunities. Among those children who were represented by counsel, nearly half were permitted to remain in the U.S., but among those who had no attorneys, only 10% were allowed to remain in the U.S.

If you would like to become a volunteer attorney for unaccompanied immigrant children, visit this website for more information: or write to

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Matthew Konecky

When Law Enforcement Creates Crime

While attempting to get crime off the street, the police often engage in tactics that unnecessarily invite people to engage in criminal activities. In several recent cases of entrapment, it’s obvious that law enforcement is creating crime to stop crime.

On September 2nd, 2014, the Circuit Court in Osceola County threw out seven grand theft cases of grand theft in a sting operation from April 1.

The Osceola Sheriff’s office set up a purse with $350.00 visible and waited for someone to “take the bait”. Anyone who took the money or contents of the purse were later arrested. The seven defendants in the case were represented pro bono by attorney Don Waggoner. Judge Jon Morgan noted that the police did not have any knowledge as to the defendants’ propensity to crime, most whom were homeless or had low income jobs. In other words, the defendants were not subjects of any police investigations. They were simply enticed to commit a crime by law enforcement’s actions.

I have personally seen this type of investigation in Broward County. Sheriff’s office deputies were filling duffel bags at the airport bus benches and waited for folks to pick it up. In addition, and more notable, the DEA, ATF, and local jurisdictions over the last three years have been conducting Operation Smoking Gun. In these operations, a fake store is set up by the police, where undercover officers sell bootlegged clothing, cigarettes, adult videos, and other wares. Their goal is to interact with people with criminal histories who may want to illegally sell guns or drugs.

What does the public get from having homeless men arrested for taking something that doesn’t belong to anyone? What good does it do for DEA to set up an illegal shop for one year to sell stolen merchandise to people and create a beehive of criminal activity just to get a few guns off the street? This type of policing creates crime with no benefit to anyone.

I am glad that fellow FACDL attorney Don Waggoner stepped up to the plate and got those cases dismissed. This might encourage law enforcement to actually start stopping crime, rather than inciting it.

For information about the Law Offices of Matthew Konecky, visit

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Brian Case

What to Do with a Defective Contractor Bid

When it comes to risk-taking for contractors, aside from the risks associated with the actual physical labor, the greatest risk a contractor undertakes is providing its bid to perform the intended work.

A contractor’s bid is its quote to perform a specific task, trade, or project. A contractor should therefore take care in insuring that there are very specific or objective criteria defining the “scope of work” upon which the bid is based. The following is a discussion of the risks, liabilities, and entitlements of contractors with respect to mistakes in the bidding process.


In most instances, a bid by a contractor to perform construction services is, by its very nature, an “offer” in the legal sense in that it usually contains a specific price quote to perform a specific scope of work. Normally, if an offer is not otherwise revoked, it must be accepted by the offeree before a legal obligation can be binding. However, contrary to this general rule, contractor bidding carries with it many exceptions and nuances of which contractors and legal practitioners should be aware.

  • Private Work/Doctrine of Promissory Estoppel

Probably the largest area of dispute in private works which surrounds this issue of bids and their contractual precepts is the area of subcontractor bids to general contractors. Although a bid is generally nothing more than an offer which may be revoked prior to acceptance, in California it has long been held that a subcontractor’s bid to a general contractor may be held irrevocable where the general contractor has relied upon such bid to its detriment.

The California Supreme Court in Drennan v. Star Paving Company (1958) 51 Cal.2d 409, held that although bidding on private works is not regulated by any specific statutory scheme as in public works, other basic legal principles are at work which should prevent a subcontractor from withdrawing its bid to a general contractor under the doctrine of promissory estoppel. This conclusion is enforced, absent extraordinary circumstances, even where the subcontractor’s bid contains a mistake or error.

The normal circumstances for application of such a conclusion follow a general contractor’s use of a subcontractor’s bid in its proposal to an owner which is subsequently accepted or is binding upon the general contractor.

It should be noted that the conclusion in the Star Paving Company case, is not without exception. Where, a prime contractor has actual knowledge or some reason to know that a subcontractor’s bid contains an error, then the equitable doctrine of promissory estoppel would not apply and, absent actual acceptance prior to revocation, a subcontractor could avoid the errors of his bid. Brunzell v. G.J. Weisbrod (1955) 134 Cal.App.2d 278.

However, the area of a general contractor’s imputed knowledge because it should have known of a mistake in a subcontractor’s bid is very gray and the benefit will probably be given to the general contractor absent other factors. See Norcross v. Winters (1962) 209 Cal.App.2d 207.

  • Public Works Statutory Bidding Obligations

As mentioned above, the bidding process on public works differs substantially from normal contractual precepts of offers and acceptance. This is because on public projects there are statutory and bidding procedures which impose responsibilities and liabilities on general contractors and subcontractors who are bidding to public owners. Many of these statutory procedures are now embodied in the California Public Contract Code.

Under the competitive bidding statutes for public works, bids of contractors are considered irrevocable offers. M.F. Kemper Construction v. City of Los Angeles (1951) 37 Cal.2d 696.

Thus, again, although the public owner may not have yet formally accepted the bid, in public projects a contractor is bound to its bid pending the owner’s decision whether to accept the lowest responsible bid. City of Susanville v. Lee C. Hess Company (1955) 45 Cal.2d 684. Accordingly, during the period of time that an owner is reviewing a general contractor’s bid on a public work, the general contractor is bound to the owner to perform the project for the amount of its bid. Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175.

Consequently, subcontractors can expect that their bids to a general contractor bidding on a public work will be similarly bound against them to the extent that the general contractor becomes the successful lowest responsible bidder to the owner.

However, this general rule is not without exceptions where certain specific factors can be shown and the contractor has procedurally acted diligently. For example, pursuant to California Public Contract Code Section 5101, et seq., a contractor may be relieved of its bid where the mistake is of the type and character to which the statute describes and written notice was given to the public entity within five days after the opening of the bid.

Generally speaking, the type of mistake which may be relieved under Public Contract Code Section 5100, et seq. involves mistakes which can be construed as “clerical mistakes” rather than mistakes in judgment or negligence on the part of the contractor providing its bid. White v. Berrenda Mesa Water District (1970) 7 Cal.App.3d 894.

A separate relief from error of a general contractor’s bid with respect to the listing of subcontractors is set forth in Public Contract Code Section 4107.5.


With respect to errors or mistakes discovered after the award or acceptance of the bid of a contractor, in most instances the law in California does not differ substantially from pre-award or pre-acceptance instances. However, there may be exceptions where the bid was obtained either through fraud or mistake. Architects and Contractors Estimating Service, Inc. v. Smith (1985) 164 Cal.App.3d 1001.


For all of the above reason, great caution should be used in developing, pricing and communicating bids for prospective construction projects.

Disclaimer: This is not intended to be giving any specific legal advice and the reader may not rely upon the comments therein and should seek specific legal advice from counsel applicable to your specific facts.

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