Christopher R. Sillari

Christopher R. Sillari, Partner

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Christopher R. Sillari practices in the areas of business and commercial litigation and transactions, federal procurement and claims, construction law, real estate, intellectual property, and appeals. Mr. Sillari’s practice includes advising clients on a variety of corporate, construction, real estate, and intellectual property matters, and handling a wide array of disputes, including claims arising from contract breaches, commercial code violations, contract interpretation, real estate disputes, the misappropriation of trade secrets, trademark violations, and unfair business practices. Mr. Sillari has successfully participated in a number of federal procurement protests to the U.S. Government Accountability Office and has a keen familiarity with the Federal Acquisition Regulations. Mr. Sillari has also participated in successful appeals with the California Courts of Appeal and the Armed Services Board of Contract Appeals.

Mr. Sillari is admitted to practice before all California state courts, the United States District Courts for the Southern, Central, and Northern Districts of California, the United States Court of Appeals for the Ninth Circuit, and the United States Court of Federal Claims. He is currently a member of the San Diego County Bar Association Appellate Court Committee. Mr. Sillari received his juris doctor from the University of San Diego School of Law, from which he graduated cum laude and was made a member of the Order of the Coif. While in law school, Mr. Sillari was a member of the San Diego Law Review. Mr. Sillari received his Bachelor of Science in Public Administration and Political Science from James Madison University. Mr. Sillari was named a San Diego Rising Star in 2015, 2016 and 2017 as published by Super Lawyers Magazine and was awarded San Diego Business Journal’s Best of the Bar honors in 2016.

Representative Experience

Prime Contractor v. Receiver – Public Works

The firm’s client was the prime contractor on a California public works project. After paying one of its subcontractors nearly 80% of the subcontractor’s total contract price for the scheduled manufacturing and delivery of fabricated steel parts, the subcontractor was taken over by a court-appointed receiver. The receiver initially refused to complete the job because of an unrelated payment dispute between the firm’s client and the subcontractor on a separate project. The firm, faced with a rapidly approaching delivery deadline that would have triggered project-breaking liquidated damages, successfully negotiated a favorable resolution with the receiver while avoiding litigation that would have prevented timely performance of the project. In analyzing our client’s rights and potential remedies, the firm persuasively argued that under the public agency’s contract and California Commercial Code, the public agency became title owner of the portions of the steel parts already paid for by our client, even though the parts were never transferred to the possession of our client or the public agency. This argument provided our client with the leverage it needed to settle with the receiver to allow it to timely deliver the steel parts and complete its performance of the project.

Brewer Corporation, et. al. v. Point Center Financial, Inc. (Cal.Ct.App., January 31, 2014)

On January 31, the Fourth District Court of Appeal followed Familian Corp v. Imperial Bank, holding stop notice claimants have priority over the entire construction loan amount and lenders must make all fees, interest, and points they took from the loan available to stop notice claimants. This case should expedite recoveries and avoid the tired lender defenses that seek to distinguish Familian or assert it was wrongly decided. In the underlying action, four contractor claimants (two of which were represented by the firm) pursued bonded stop notice claims against the construction lender, Point Center Financial, Inc. After a bench trial, Point Center was found liable for the stop notice claims. Liability against Point Center was imposed not only for the construction funds undisbursed at the time of each stop notice, but also for all amounts that had already been spent on interest, loan fees, and real estate and escrow fees. The total judgment, including attorneys’ fees, was approximately $3 million.

Point Center appealed the judgment on a number of grounds, including whether the Familian decision should be applied. While the Court of Appeal remanded the judgment of one claimant based on a procedural defense raised by Point Center, the Court affirmed the judgment for the other claimants, including the firm’s two clients, and upheld the Familian decision. Point Center also appealed on the ground that one of the firm’s clients failed to serve Point Center with a notice of commencement after filing a lawsuit to enforce its stop notice, which Point Center argued was a jurisdictional requirement that should have entitled Point Center to a nonsuit. The firm’s client timely served its stop notice and timely filed its lawsuit, but did not serve a notice of commencement, pursuant to Civil Code section 3172, within five days of commencing its lawsuit. The firm represented the client at trial. At trial, it was undisputed Point Center suffered no prejudice as a result of the lack of notice of commencement. The trial court denied Point Center’s motion for nonsuit, finding no prejudice to Point Center and substantial compliance by the firm’s client. The Court of Appeal affirmed the trial court’s ruling and rationale. The Court of Appeal concluded that the requirement to serve a notice of commencement was not mandatory, unless the lender could show prejudice. Since there was no prejudice to the lender, the contractor claimant was not required to serve a notice of commencement. The firm’s clients will now return to the trial court to seek an award of their attorneys’ fees and costs incurred on the appeal, and will continue to enforce their substantial money judgment. A copy of the published decision can be viewed here.

Cease and Desist of Trademark and Copyright Infringement

The firm represents a multi-national manufacturer and retailer of luxury clothing goods. The firm’s client was notified that an unauthorized website existed that appeared to be associated with the client’s product, and which used the client’s trademarks and copyrighted images to re-direct potential business to another company’s website. The firm immediately took action and successfully shutdown the operation of the misleading website and procured the abandonment of the infringing domain name. The firm accomplished its client’s goals without the need of litigation.

Cease and Desist of Copyright Infringement

The firm represents a local ecotourism and adventure company. The firm’s client is well known in the San Diego region for its highly successful whale-watching kayak tours, led by “Big Wave Dave.” The firm’s client was therefore shocked when it received a daily deal from Groupon that offered a whale-watching kayak tour from a direct competitor and included a picture of Big Wave Dave in a kayak next to a gray whale breaching the surface off the shores of La Jolla, which was taken directly from the client’s website. The firm immediately took action against the competitor and Groupon based on the copyright infringement, and successfully obtained the removal of the infringing image and correction of the daily deal without the need of litigation.

GAO Protest of Department of the Army’s Solicitation GAO File No. B-407457

The firm successfully protested the Army’s decision to exclude the firm’s client from consideration of the award of construction of a Wing Operations and Training Facility at Beale AFB. The protest was filed with the GAO prior to the award to challenge the Army’s determination that because the proposal submitted by the firm’s client did not properly acknowledge all of the amendments, the proposal could not be evaluated. The firm presented a compelling legal and factual argument to the GAO that deficiencies in the proposal were clerical in nature, and therefore the Army had breached its duty to the firm’s client pursuant to FAR 14.407-1 to clarify its proposal. Upon being confronted with this argument, the Army took corrective action and agreed to evaluate the proposal. This result was accomplished by the firm pursuant to a flat fee arrangement with the client to assure a cost-effective result.

Groundbreaking GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-406024.4

The firm successfully protested to the GAO the VA's award of a $23 million solar project in Las Vegas to R.E.M. Construction Co. The project was to be awarded by the VA on the basis of price and technical considerations deemed most advantageous to the government. After the firm's client, SPINT, submitted the second lowest priced proposal, the VA awarded the project to R.E.M., with a higher priced proposal than SPINT, ostensibly because of R.E.M.'s superior technical rating. In the fall of 2011, the firm protested the award arguing the VA improperly evaluated SPINT's technical proposal. The VA took immediate corrective action and re-evaluated the proposals. After the VA's re-evaluation, the project was again awarded to R.E.M in March 2012. At that time, the VA failed to notify SPINT of the re-award and also did not post notice of the re-award on FedBizOpps. After SPINT received word of the re-ward to R.E.M. in May 2012, it requested a debriefing from the VA, which the VA refused to provide. The firm then protested the re-award, once again challenging the VA's evaluation of SPINT's proposal. In response, the VA filed a motion to dismiss, arguing that SPINT was notified of the re-award via e-mail in March 2012, and therefore its protest two months later was untimely. The firm defeated the motion to dismiss with a novel argument of the sufficiency of electronic notice, and then eventually supplemented its protest to challenge the VA's utter failure to conduct a tradeoff analysis of all of the responsive proposals, as is required by the Federal Acquisition Regulations. In a published decision, the GAO determined that the VA unreasonably evaluated SPINT's proposal and fundamentally failed to perform a best-value tradeoff analysis. Accordingly, the GAO recommended that the VA re-evaluate all of the proposals, properly document its evaluation, perform a proper tradeoff analysis, and reimburse SPINT for the fees it incurred pursuing the protest. A copy of the published decision can be viewed here.

GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-407092

The firm successfully protested the VA’s solicitation for the upgrade and renovations at the VA Greater Los Angeles Healthcare System before the GAO. Since early 2006, the VA has been incorporating Information Letter (IL) 049-06-4 into all of its solicitations. However, this IL conflicts with the Veterans First Contracting Program enacted in December 2006. The firm challenged the inclusion of the IL on this Los Angeles project, arguing that the IL jeopardized open and fair competition, and discouraged participation by legitimate veteran owned small businesses. Promptly following receipt of the firm’s protest, the VA took corrective action by cancelling the solicitation so that the project could be re-solicited without reference to the conflicting and superseded information letter. SDVOSB and VOSB enterprises should consult with legal counsel with any questions as to the VA’s implementation of these important programs which must be protected for the benefit of our veterans.

Client v. Family Member – Real Estate Dispute

The firm’s client owned a property that was initially titled as a joint tenancy between the client, the client’s spouse, and another family member. Disputes between the parties led to litigation that culminated in a verbal agreement on the record for the property to remain in joint tenancy, but the family member was only to have a right of first refusal to purchase the property at a discounted price. Years later, after the client’s spouse passed away, the client retained the firm to assist the client with the sale of the property. The family member refused to exercise their right of first refusal, yet also refused to deed over their interest in the property, contending they were a fifty percent title owner of the property because the client’s spouse passed away. The firm filed an action for specific enforcement of the verbal agreement, breach of contract, quiet title, and partition of the property. After a negotiated settlement, the firm’s client obtained full title to the property without the family member receiving an interest in the property.

MHS Customer Services, Inc. v. South Central Valley Mortgage Services, Inc. San Diego Superior Court Case No. 37-2011-00084104-CU-BC-CTL

The firm’s client performed property inspection and preservation services for SCVMS throughout Southern California. Disputes arose over the non-payment or underpayment of more than 400 work orders performed by the firm’s client. Upon the firm’s initial demand, SCVMS was only willing to compensate the firm’s client for approximately fifteen percent of the total amount in dispute. The firm eventually filed a lawsuit on behalf of its client for breach of contract, reasonable value, and open book account. At mediation, the parties reached a negotiated settlement in which the firm’s client obtained payment for the entire principal amount it disputed.

Architectural Aluminum Window Systems, Inc. v. Dick Pacific Construction Co., Ltd. Armed Services Board of Contract Appeals No. 57172; United States District Court, District of Hawaii Civil No. 07-00603 DAE LEK

The firm’s client was a window subcontractor on a federal project at Schofield Barracks, Hawaii. As one of the first federal projects to be bid in the aftermath of September 11, 2001, disputes arose over who was responsible for the enhanced blast requirements. Upon completion of its work, the firm’s client pursued change order and contract balance claims against the general contractor and the Army. After reserving its client’s Miller Act claim, the firm pursued a certified pass-through claim to the Army. Approximately fifty percent of the certified claim was paid after the parties engaged in informal discussions. The remainder of the certified claim was denied and the firm then appealed the contracting officer’s decision to the Armed Services Board of Contract Appeals. Under ASBCA guidelines, the parties engaged in mediation and the firm’s client reached a negotiated settlement with the Army on the appealed claims. The firm’s client subsequently reached a negotiated settlement with the general contractor on the contract balance.

DC Painting, Inc. v. Michael S. Summers San Diego Superior Court Case No. 37-2007-00074199-CL-BC-CTL; Court of Appeal of the State of California, 4th Dist. Case No. D055330

The firm’s client was a painting contractor that was awarded a contract to repaint a commercial building. Upon completion of the work, the owner refused to pay the firm’s client based on a number of alleged defects in performance. The firm proceeded to trial and successfully obtained a verdict in favor of its client for the full value of its client’s services, as well as a substantial attorneys’ fee award. The owner appealed the attorneys’ fee award and the firm successfully briefed and argued the appeal, which resulted in the upholding of the trial court’s ruling and the subsequent granting of additional attorneys’ fees related to the appeal.

Dhando Investments, Inc. v. Staley, Inc. Los Angeles Superior Court Case No. KC058493

The firm's client was an Arkansas corporation that was sued in Los Angeles for various business torts that allegedly occurred in Arkansas. The firm successfully obtained a dismissal of the lawsuit by establishing that its client was not subject to California's jurisdiction because of its limited contacts to California and the foreign nature of the plaintiff's claims. The lawsuit was dismissed at little cost and inconvenience to the firm's client. The litigation has not been pursued by the plaintiff in a different jurisdiction.

The Weitz Company I, Inc. v. Brethren Hillcrest Homes

The firm's client was the general contractor charged with expanding and renovating a large retirement community. The project was delayed for more than one year. The parties disputed liability for the delay. The owner sought over $1.5 million in liquidated damages from the general contractor. A five day arbitration resulted in the firm successfully defending the owner's delay claims and the litigation resulted in a net recovery for the firm's client.

Seminars

Indemnity in Construction Made Simple

May 17, 2017: Presented by David S. Demian and Christopher R. Sillari.

Construction Project Management Best Practices - A Legal Perspective

March 8, 2016: Presented by Jeffrey B. Baird, David W. Smiley, and Christopher R. Sillari. This lunch and learn workshop will help you to identify common risks and disputes on a construction project. Discuss strategies for handling disputes and claims, including use of contract provisions and management methods. Review other risk mitigation and dispute avoidance tools. Understand issues common to both General Contractors and Subcontractors on a construction project. Learning objectives:

  • Identify common risks and potential disputes on a construction project
  • Identify important contract provisions for disputes and claims, and risk mitigation tools
  • Understand common traps from the perspective of a General Contractor and Subcontractor
  • Learn dispute management skills

Target Audience: Risk Managers, Project Managers, Contract Administrators and In-House Counsel. Find out more here.

Contract/Subcontract Review Strategies

May 6, 2015: Presented by Jeffrey B. Baird and Christopher R. Sillari. Learn to identify the most important clauses to be negotiated, strategies to deal with contract clauses commonly used in construction contracts and understand common traps from the perspective of the General Contractor and Subcontractor. Register online here.

Bid Protest Basics: Local, State and Federal

March 11, 2015: Presented by Christopher R. Sillari and Dustin R. Jones. Have you ever wondered if you have grounds to protest the low bidder? Whether a protest is worth pursuing? What are the standards for bid responsiveness and bidder responsibility? How to fill out experience and litigation disclosures to avoid a protest? How to fend off a protest? Whether you should protest from the low position (sometimes, believe it or not!)? When to call the lawyer? For federal works, is there a discrepancy in the solicitation? Should you protest it (and when)? Found out the answers to these questions and more.

Contract/Subcontract Review Strategies

November 19, 2014: Presented by Jeffrey B. Baird and Christopher R. Sillari. Learn to identify most important clauses to be negotiated, strategies to deal with contract clauses commonly used in construction contracts and understand common traps from the perspective of the General Contractor and Subcontractor.

Bid Protest Basics: Local, State and Federal

October 22, 2014: Presented by Christopher R. Sillari and Dustin R. Jones. Have you ever wondered if you have grounds to protest the low bidder? Whether a protest is worth pursuing? Take this course.

Contract/Subcontract Review Protocol Best Practices

February 11, 2014: Identify most important clauses to be negotiated, identify strategies to deal with contract clauses commonly used in construction contracts and understand common traps from the perspective of the general contractor and subcontractor. Presented by Jeffrey B. Baird and Christopher R. Sillari.