Andrea L. Petray

Cell-Crete Corporation v. Fed. Ins. Co. (2022) 82 Cal. App.5th 1090.  Payment bond surety sought fees and costs following summary judgment of plaintiff’s claims based on bond principal’s defeat of the claims in binding arbitration.  The trial court denied fees contending the fees were paid by the bond principal and not the surety.  Finch appealed the decision, resulting in the precedent setting appellate decision holding the surety does not have itself paid the fees and costs to be awarded fees and costs as the prevailing party.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented the general contractor concerning the default termination of a framing subcontractor on a remote USACE project.  The case was filed by the general contractor against the subcontractor and its performance bond surety.  The claims included the general contractor’s for costs to complete and delay, and by the subcontractor for wrongful termination, lost profits and extra work.  The case was arbitrated over four days resulting in an award in favor of the general contractor against both the subcontractor and its surety. In a total amount exceeding $2.5 million, including an award of fees and costs in excess of the penal sum of the bond.  Notably, the surety never made an offer to settle.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented a general contractor in pursuing a plumbing subcontractor and its performance bond surety for the cost to complete the subcontractor’s work after the subcontractor asserted material breach and abandoned the project during construction.

Client was general contractor for a public work of improvement.

The project was a $145 million community college expansion project.  The plumbing subcontractor alleged it was entitled to walk because the project schedule was prolonged, portions of its work were wrongfully rejected, and its subcontract scope was increased.  The subcontractor and its surety disclaimed all liability for completion costs and engaged in protracted, multi-year litigation.

Subcontractor claim defeated. $4 million awarded to general contractor.

After an eleven-day hearing featuring 27 witnesses, a three arbitrator panel rejected the subcontractor’s $2 million affirmative claim and awarded the general contractor over $4 million, including fees, costs, and interest.  The award was promptly paid by the surety, whose highest pre-arbitration offer had been to pay $500,000.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Thomas E. Diamond

The firm represented a general contractor in pursuing a subcontractor’s performance bond surety for the cost to complete subcontractor’s work.  The client was the general contractor for the construction of a public work of improvement.  Its landscaping subcontractor filed bankruptcy and abandoned its work on the project—thus forcing the general contractor to complete the work.  The firm made a demand on the subcontractor’s performance bond surety and negotiated payment by the surety for the cost to complete before suit was filed.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented a joint venture of two top ENR general engineering clients in a dispute with a cellular concrete subcontractor regarding a grade separation rail project in northern California.  The dispute involved pay quantities of work performed, and delay and disruption claims by both sides of the dispute.  Based on the firm’s prior experience trying a very similar claim — and rare knowledge of the peculiarities of cellular concrete construction — the firm positioned the case for resolution at early mediation.  The case was resolved extremely efficiently on terms very favorable for the firm’s client.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm sued to foreclose a design professional’s lien against a residential subdivision in Riverside County which had been halted due to the Great Recession.  We sued several defendants because there had been transfers of the real property and name changes since the contract for design services and surveying was performed.  The current owner defaulted and the firm obtained a foreclosure judgment which extinguished all other interests in the property.  The judgment was recorded immediately.

patience has its rewards.

The firm expected the valuable property would be developed, perhaps using the design and surveying performed by the client.  Rather than spending money to collect on the secured debt, we waited for the property owner to resume development.  A year or so after the judgment, the owner paid the debt in full in order to release the judgment lien.

Counsel: Andrea L. Petray and Jon F. Gauthier

The firm represented a framing subcontractor pursuing its outstanding subcontract balance which had been paid to the general contractor by the project owner, but withheld from the subcontractor.  The firm recorded a mechanic’s lien on behalf of the subcontractor and successfully obtained a summary judgment, arguing there was no dispute that all elements of a mechanic’s lien cause of action were satisfied.

The owner appealed arguing the subcontractor had no lien rights due to a recent corporate reorganization.  After extensive briefing and oral argument, the Court of Appeal upheld the judgment in favor of the subcontractor and the firm’s client was paid in full, including interest. ​

Counsel: P. Randolph Finch Jr., Jason R. Thornton, Andrea L. Petray, and Thomas E. Diamond

The firm represented the general contractor in pursuit of recovery of over $1 million in extra work claims on a $13 million tenant improvement project.  Claims were pursued based on the AIA contract documents through contractual mediation resulting in payment to the firm’s client in less than 70 days from when the firm was retained.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented a mechanical subcontractor pursuing claims for extra work, delay, and disruption experienced while performing work at a federally funded construction project.  The firm developed and submitted the subcontractor’s claims to both the general contractor and the Miller Act payment bond surety.  At an informal resolution meeting — prior to initiating legal proceedings — firm attorneys negotiated a six-figure settlement in favor of the subcontractor.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented an insurance company to recover the premium owed for a one-year workers’ compensation insurance policy it issued to an insured that owns and operates assisted living facilities in California.  The insured cancelled the policy two weeks after the effective date, triggering the policy’s early cancellation fee.  The insured refused to pay the policy premium, including the early cancellation fee, claiming its prior partial payment constituted an accord and satisfaction, and that the insurance company failed to provide the required notice of the fee.

Success is found in the details.

The firm engaged in a detailed analysis of the policy records, calculation of the premium and fee, and the Insurance Code.  The firm represented the insurance company at two mediation sessions and settled the case with a favorable outcome for the client.

Counsel: Andrea L. Petray

The firm represented a subcontractor seeking recovery of the subcontract balances due for work it performed at two public schools.  The subcontractor fully performed its scope of work, but the general contractor failed to pay the subcontractor the entire subcontract amount.

The Firm filed suit for recovery on the subcontractor’s stop payment notice and on the general contractor’s payment bond for the projects at issue.

The firm engaged in significant discovery to all parties to the lawsuit and, after obtaining the responses and analyzing the project documents, was preparing to proceed to trial.  Subsequently, the firm negotiated a global settlement on behalf of the subcontractor with the payment bond surety and the subcontractor’s lower-tiers, resulting in a six-figure full recovery for the subcontractor.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Hundreds of design changes cause 15-month construction delay.

The firm represented the general contractor in its pursuit of its contract balance, a time extension, and time-related and extra-work costs.  Over 2000 RFIs and 700 changes to the project design during construction resulted in a 15-month delay to a $125 million public work of improvement, which was originally to be completed in just over two years.

Rigorous analysis and A compelling defense result in $13 million settlement.

The owner refused to provide any time extension or pay time-related and extra-work costs, exposing the contractor to millions of dollars in liquidated damages and subcontractor claims.  Following a thorough analysis of project documents, the firm and its consultants prepared a compelling argument for owner liability, and negotiated a time extension and $13 million in additional compensation for the firm’s client.​

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Thomas E. Diamond

The firm represented a concrete and masonry subcontractor in a claim for recovery of its subcontract balance due on a large, privately-funded construction project on which there were multiple claims between the general contractor and various subcontractors. The firm was brought in after conclusion of the subcontractor’s work to record a mechanic’s lien, prepare contract and payment bond claims, and file suit.

Early settlement reached. Multi-party arbitration avoided.

Through negotiation, the firm achieved an early settlement for payment to its client of an amount in excess of its contract balance.  Equally important, the client also avoided participation in a multi-party arbitration involving the general contractor and multiple subcontractors.

Counsel: Andrea L. Petray

The firm represented an ENR Top 50 general contractor to recover the contract balance and repair costs incurred on the construction of a mixed-use office and apartment building in San Diego, California.  The project suffered property damages caused by a plumbing subcontractor.  The general contractor incurred significant costs to perform repairs.

The owner asserted claims against the general contractor and withheld payment.

Following a detailed analysis of project documents, the parties’ claims, and applicable insurance policies, the firm was prepared to file a lawsuit.  However, through persuasive argument — combined with its early efforts to understand its client’s positions — the firm negotiated a favorable monetary settlement with full payment to the general contractor from the owner and the owner’s OCIP insurer before a lawsuit was filed.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented a plumbing subcontractor to pursue claims for the unpaid subcontract balance plus delay and disruption for work performed at a publicly funded construction project.  After filing suit against the general contractor and its payment bond surety, the firm obtained public records demonstrating the general contractor was paid for the work of the subcontractor, but had not paid the subcontractor.

Public records leveraged in negotiating six-figure settlement.

The firm used the public records to negotiate a six-figure settlement where the general contractor paid the subcontractor all amounts due, prompt-payment penalties of two percent per month, as well as all attorneys’ fees and costs incurred to pursue payment.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The Firm represented the structural concrete subcontractor seeking recovery of payment for subcontract balance and extra work on a luxury mid-rise condominium project.

The Firm perfected its client’s mechanic’s lien and stop payment notice remedies, which were bonded off by the general contractor who contended nothing was due to the subcontractor because of defective work and delay caused by the subcontractor.  Despite the Firm’s efforts for settlement, the general contractor and its surety never made an offer to pay the Firm’s client any amount.

The dispute was tried to a San Diego jury over three weeks.

The Firm used building modeling to create 3-D demonstrative exhibits allowing the jury to see how a structural concrete building is built from the ground up, and better understand the testimony of the witnesses.  The Firm’s experts testified with demonstrative exhibits which summarized and simplified complex critical path method opinions.

The jury’s verdict was 12-0 in favor of the Firm’s client.

The jury awarded every penny the Firm asked for against both the general contractor and its surety.  Following post-trial motions, the judge awarded all requested pre-judgment interest, all expert witnesses fees, all court costs, and all attorneys’ fees incurred through the verdict.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The Firm began representing the prime contractor as project counsel concerning this unique cured-in-place pipe (CIPP) project.

The Firm helped position its client to declare owner default, stop work based on owner breaches of Public Contract Code section 1104 (lack of buildable plans), and avoid performance bond surety takeover, as well as mitigate risk with the client’s CIPP subcontractor, its surety, and liability insurers.  These tasks required a thorough understanding of the CIPP specifications, the CIPP industry players, and strong relationships with the sureties.

The project owner sought over $10 million from the Firm’s client and surety.

Post declaration of default, litigation commenced among the client, project owner, subcontractor, and sureties, with the project owner seeking more than $10 million from the Firm’s client and surety.  The Firm was able to shift defense costs to liability insurers and mitigate the out-of-pocket litigation costs to its client.  The project owner incurred over $1 million in attorneys’ fees.

The case settled for payment to the Firm’s client.

After two years of litigation, depositions of the key project participants and CIPP industry participants around the country, with a six-week jury trial looming, and following three mediation sessions over six months, the case settled for payment to the Firm’s client, hailed as an excellent result in this bet-the-company (and personal assets supporting the bonding line) case.

Counsel: P. Randolph Finch Jr., Nowell A. Lantz, and Andrea L. Petray

The Firm represented the structural concrete subcontractor seeking recovery of payment for subcontract balance and extra work.

The Firm perfected its client’s mechanic’s lien and stop payment notice remedies, which were bonded off by the general contractor who contended nothing was due to the subcontractor because of defective work and delay caused by the subcontractor.  Despite the Firm’s efforts for settlement, the general contractor and its surety never made an offer to pay the Firm’s client any amount.

The dispute was tried to a San Diego jury over three weeks.

The Firm used building modeling to create 3-D demonstrative exhibits allowing the jury to see how a structural concrete building is built from the ground up, and better understand the testimony of the witnesses.

The jury’s verdict was 12-0 in favor of the Firm’s client.

The jury awarded every penny the Firm asked for against both the general contractor and its surety.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The Firm represented a subcontractor in a claim for recovery of amounts due for scope and extra work performed on a publicly funded construction project.  The Firm was brought in after the subcontractor had completed work, but prior to completion of the project to enforce contract, payment bond, and stop notice release bond claims.

The Firm filed suit against the contractor and sureties for the payment and stop notice release bonds, after which the contractor claimed some of the Firm’s client’s work was defective.  After the Firm propounded discovery, the matter settled with payment to the client of the full subcontract balance, including extra work claims, and a release of the contractor’s claim for defective work.

Counsel: Andrea L. Petray

The firm represented a material supplier in a claim for recovery of amounts due for materials it furnished to a subcontractor on a publicly funded construction project. The firm was brought in prior to completion of the project to enforce stop notice, payment bond, and contract claims. After the firm filed suit against the subcontractor, general contractor, project owner and payment bond surety, the matter settled with payment to the firm’s client of the full principal amount due, plus attorneys’ fees.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented a construction manager in defense of a cross-complaint filed by a prime trade contractor.  The prime trade contractor sought damages from the client for fraud, intentional interference with a contract, interference with business, equitable indemnity, express indemnity and implied indemnity related to the processing and payment of deductive change orders related to the prime trade contractor’s work.
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The firm filed two demurrers, obtaining dismissal of all indemnity and fraud claims.  After eliminating more than half of the prime trade contractor’s causes of action through demurrer, the case was settled at mediation without payment by the firm’s client.

San Diego Superior Court Case No. 37-2012-00052831-CU-BC-NC
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Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented the construction manager for three community college construction projects.  The owner of the projects claimed the construction manager was responsible for liquidated damages and project close out costs in excess of $1.0 million

Before a lawsuit was filed, the firm worked diligently to explore alternative resolutions to the dispute including a proposal to assist with the closeout of all three projects which the firm showed was the responsibility and obligation of other than its client.  Through a series of meetings and exchange of position statements over a span of years, the firm negotiated a mutual release with no payment by its client.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented the prime contractor on a more than $100 million freeway expansion project in southern California. The electrical subcontractor on the project submitted extensive delay and disruption claims and subsequently filed a lawsuit. The firm responded to the lawsuit and forced the case to mediation prior to expending significant resources on discovery. After the firm’s comprehensive mediation presentation attacking the basis for the subcontractor’s claims, the subcontractor settled for a fraction of its initial demand.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

A trade contractor on a public works new high school construction project filed suit against the firm’s construction manager client for breach of contract as an alleged third-party beneficiary and negligence seeking in excess of $3.8 million dollars for alleged contract balance and delay and disruption damages.  Following nearly two years of litigation and after the court granted the firm’s summary judgment and summary adjudication motions, the District and trade contractor settled with no contribution by the firm’s client.

San Joaquin Superior Court Case No. CV033417

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

The firm represented a homeowners association that sued to foreclose on a lien to collect delinquent assessments in the amount of $154,000.00. Defendant asserted a cross-claim for declaratory relief seeking to invalidate the homeowners association’s allocation of airport landing rights. After the second day of the client’s case-in-chief at trial, and testimony by sitting Justice MacDonald (who drafted the operating documents for the association), defendant agreed to pay the full amount of the lien plus $150,000.00 in attorneys’ fees and costs; and judgment validating the allocation of landing rights.

San Diego Superior Court Case No. GIN056722

Counsel: Jason R. Thornton and Andrea L. Petray