Jon F. Gauthier, Attorney

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Jon F. Gauthier is a shareholder of Jon F. Gauthier, APC, Of Counsel to Finch, Thornton & Baird, LLP. Mr. Gauthier represents contractors, subcontractors, and other participants in the construction industry with all legal issues encountered by those businesses, including: counseling, mediation, arbitration, and litigation. Mr. Gauthier’s litigation practice includes public and private construction litigation, including mechanic’s lien foreclosures, extra work claims, delay and disruption claims, bid enforcement, contract defaults, surety obligations, and Contract Disputes Act claims. He also provides legal advice on all types of construction documents. Published cases include Primo Team, Inc. v. Blake Construction Co., Inc. (1992) 3 Cal.App.4th 801 [the court agreed with Mr. Gauthier in holding true labor brokers do not have lien/bond rights].

Mr. Gauthier is admitted to practice before all California state courts, the United States District Courts for the Central, Eastern, and Southern Districts of California, the United States Court of Appeals for the Ninth circuit, and the United States Claims Court. Mr. Gauthier has been appointed as mediator in a number of civil lawsuits, and he is a lecturer for construction law seminars sponsored by Lorman Education Services, National Business Institute, and others. Mr. Gauthier received his Bachelor of Arts degree from the University of California, Santa Cruz, and his juris doctor from the University of San Diego School of Law.

Bar Admissions

  • California (state courts)
  • U.S. Court of Appeals (Ninth Circuit)
  • U.S. Court of Claims
  • U.S. District Courts of California (Central, Eastern, and Southern)

Education

  • J.D. – University of San Diego
  • B.A. – University of California, Santa Cruz

Representative Experience

Road Builders, Inc. v. Rasmussen Equipment Rentals, Inc.

Legal research revealed that our client had no right to pursue a mechanics' lien. Client's customer had lien rights, but no resources or desire to file suit to foreclose its mechanics lien. We arranged for the client's customer to assign its claim and lien to our client. Soon after we filed suit to foreclose on that (assigned) lien, the owner paid client's full claim in exchange for a complete release of the lien. Our client's customer is also pleased, because it avoided any liability to client for the underlying claim.

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.

Brewer Corporation dba Brewer Crane & Rigging v. TM Structural, Inc.; and Division 8, Inc. v. Mi Arbolito San Diego Superior Court Case No. 37-2007-00074230

The firm represented two clients, Brewer Crane & Rigging Company and Division 8, Inc. with claims for payment on a private 14 unit luxury condominium project in San Diego, California. Despite an insolvent developer, the firm recovered judgment against a private-money lender on bonded stop notices claims for the principal amount of nearly $275,000.00, as well as pre-judgment interest, bond premiums, attorneys’ fees and costs. The case concerned a $13.5 million construction loan which the defendant lender ceased funding as the project property value fell to less than that amount, and claimed it was not a construction lender for purposes of stop notice claims. Ultimately the owner went through bankruptcy and a senior lender foreclosed, thereby preventing either our clients or the defendant lender from recovering anything through their liens against the real property. The firm successfully argued that all of the construction loan funds not used to pay construction costs, including points, interest, fees, etc., whether paid to the defendant lender, paid to its participating investor/lenders, or as reimbursement for transaction costs, had to be disgorged for the benefit of the bonded stop notice claimants.

Seminars

2012 Mechanic's Lien Law Update

April 3, 2012: Presented by Jon F. Gauthier, David W. Smiley and Elizabeth Smith-Chavez, San Diego County Bar Association, Construction Law Section and Real Property Law Section. Find out more here.

Construction Lien Law

January 25, 2012: Presented by David S. Demian, Jon F. Gauthier, and David W. Smiley for Lorman. Find out more here.

Construction Lien Law in California

November 5, 2009: Presented by David S. Demian, Jon F. Gauthier and David W. Smiley for Lorman Education Services

Construction Lien Law In California

May 9, 2008: Presented by Jon F. Gauthier and David S. Demian for Lorman Education Services.

Construction Lien Law In California

May 9, 2007: Presented by Jon F. Gauthier and David S. Demian for Lorman Education Services.