Kelly A. Floyd

Client design-builder had an approximately $14 million dispute with its concrete subcontractor related to construction of a large airport rental car facility.  The subcontractor attempted several variations of mechanic’s liens against what it alleged was a leasehold interest held by the private developer financing the project and client design-builder.  The firm challenged the propriety and validity of the liens in court as they improperly imposed a lien on public property or stated a claim against a non-existent private property interest.  The court granted the firm’s challenges and awarded the client its attorneys’ fees.  The successful challenge of the liens contributed to an early favorable settlement in the concurrent arbitration proceedings between the parties which avoided significant litigation costs.

Counsel: Jeffrey B. Baird, Kelly A. Floyd, and Cory P. DiBene

The firm represented a prime contractor in an action against the Department of the Navy before the Armed Services Board of Contract Appeals (ASBCA) that resulted in judgment.  The client performed a $32 million contract with the Navy for the installation of a pipeline, weir structure, and pump station.  During the course of construction, the client encountered unforeseen conditions and design defects that significantly drove up costs and severely delayed the project.

Certified claim prepared and appeal filed

FTB prepared a certified claim and, later, filed an appeal with the ASBCA.  The firm also uncovered previously undisclosed as-built data providing an additional basis for recovery due to the Navy’s failure to disclose material facts prior to bid.  When the Navy refused to mediate at the outset of the litigation, FTB applied pressure via written discovery and depositions while minimizing litigation and expert expenses.

Claim paid via judgement

As a result, the Navy agreed to pay $2.5 million — 75 percent of the value of the client’s claim — prior to the close of discovery.  A consent judgment was entered against the Navy and the client was paid within 10 days.​

Counsel:  Kelly A. Floyd

The firm successfully pressed two businesses using confusingly similar names to that of the firm’s subcontractor client to cease and desist infringing on the client’s trademark.  The competitors changed their names under threat of infringement actions on mutually agreeable terms, thus avoiding litigation.

Counsel: Kelly A. Floyd

The firm took on representation of an individual involved in a contentious real estate dispute that had been ongoing for nearly a decade.  The firm’s client owned a horse ranch in Rancho Santa Fe and had taken on a partner as co-owner of the property.  The two parties disputed every aspect of the terms of their co-ownership, including who owned the improvements, the value of the improvements, the parties’ responsibilities with respect to subdivision, and the accounting of expenses.

The case had already been through trial and up on appeal when the client engaged the firm.

The firm represented the client at several hearings and successfully staved off the partner’s attempts to force a sale of the property.  The firm then engaged in lengthy, hostile negotiations with the partner and was able to close a deal that allowed the client to take title to the property free and clear of the partner.

Counsel: Kelly A. Floyd

The firm represented an insurance company and filed multiple lawsuits against customers who failed to pay workers’ comp and bond premiums.  With the appropriate pressure, the firm obtained favorable settlements collecting significant returns where the insurance company’s collection efforts had failed.  Where the defendants failed to appear in the lawsuits, the firm obtained default judgments and expeditiously enforced the judgments through debtor’s examinations, liens, and bank levies.

Counsel: P. Randolph Finch Jr. and Kelly A. Floyd

A bicyclist sued the firm’s client for personal injuries from a bicycle accident that occurred in an alley near an open meter box maintained by the City of San Diego. During discovery, it was confirmed that the accident did not implicate the client or its work for the City. After presenting plaintiff’s counsel with overwhelming evidence that the accident did not occur anywhere near the client’s work area, plaintiff dismissed his lawsuit with prejudice for a waiver of costs.

Counsel:  David W. Smiley and Kelly A. Floyd

The firm represented a trade contractor who discovered unanticipated asbestos in the walls and ceilings of school classroom buildings while performing technology infrastructure upgrades pursuant to a contract with a School District. To ensure the safety of the crew, the trade contractor shut down the project and demanded payment for the work performed to date, which the District refused. The firm submitted a claim to the District and successfully negotiated payment to the trade contractor without a termination of the contract and short of filing a lawsuit.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Kelly A. Floyd

While working on a large community park project for a Southern California city, the firm’s subcontractor client encountered multiple unforeseen conditions and was directed by the project’s general contractor to perform significant extra work and change work. When the general contractor refused to pay for the extra work, the firm sued the general contractor and the city. The general contractor initially refused to discuss a reasonable settlement. However, pressure from the firm’s written discovery and substantiation of the client’s claims produced the desired effect. Prior to costly depositions — and well short of trial — the firm obtained a favorable settlement for the client.

Counsel: Jeffrey B. Baird and Kelly A. Floyd

The Firm represented General Contractor in litigation contesting the Owner’s termination of General Contractor for cause on two separate contracts. The Firm demonstrated that the terminations were wrongful, and that delay to the project was not the fault of the general contractor, but instead arose from and was excused by numerous design deficiencies, repeated Owner changes, and Owner mismanagement. The Firm asserted damages based on delay, inefficiency, extra work, and to recoup surety losses. The Firm settled the matter for $7.35 million dollars, while at the same time resolving secured creditor claims of over $10 million dollars out of settlement funds and leaving money in the General Contractor’s pocket. The Owner acknowledged the terminations were not for cause.

Counsel: Louis J. Blum and Kelly A. Floyd

Immediately after award on a hard-bid sewer project, the firm’s general contractor client discovered defects in the plans requiring a significant change order. The general contractor requested the change order prior to executing the contract, which the County refused. As a result of the firm’s efforts, the County released the general contractor from the contract without any consequences to its bid bond.

Counsel: Louis J. Blum and Kelly A. Floyd

The firm represented a construction manager who was wrongfully terminated from two school district projects and was owed substantial amounts for work performed.  The firm sued the school district and immediately served the district with aggressive discovery, while also pushing for an early mediation.  In preparation for mediation, the firm performed a detailed investigation of the facts supporting the construction manager’s case and prepared an effective mediation presentation.  At mediation, the firm obtained a favorable settlement that included a retraction of the terminations for cause and significant payment by the district.  Following the legally required waiting period for bringing such a claim against a government agency, the litigation was resolved in a matter of months.

Counsel: P. Randolph Finch Jr., Louis J. Blum, and Kelly A. Floyd

The firm represented a public works contractor against a water district on a claim for additional grading quantities. The firm put together a detailed analysis of actual quantities based on as-built grades and boring information in order to rebut the district’s inadequate determination of quantities. The claim was settled favorably to the client, at mediation, and before a lawsuit was filed.

Counsel: Louis J. Blum and Kelly A. Floyd

This case involved the Treo@Kettner condominium development located in downtown San Diego, which was completed in January 2003. Treo@Kettner was the subject of a very large construction defect action beginning in 2007. The construction defect action concluded by settlements reached in 2011. More than two years later, one of the insurers who paid for the developer’s defense sued a number of the developer’s subcontractors for subrogation and express contractual indemnity, seeking damages in excess of $1.5 million. The insurer’s lawsuit, filed in May 2013, was filed more than 10 years after the applicable statute of repose had expired.

The firm, defending 10 of the subcontractors sued in the action, immediately demurred to the insurer’s complaint, arguing that it was barred by the 10 year statute of repose stated in California Code of Civil Procedure section 337.15. The San Diego Superior Court agreed, and by order dated May 2, 2014, it dismissed the insurer’s untimely lawsuit. In its ruling, the Court concluded, “[h]aving taken judicial notice of the [notices of completion] (NOCs) and the date the original complaint in this case was filed, it can be determined that this action was filed more than 10 years after the recordation of the NOCs. . . . Based on the above findings, the Court concludes that this action was untimely filed and the demurrer is sustained.”

San Diego Superior Court Case No. 37-2013-00048004-CU-BC-CTL

Counsel: David W. Smiley and Kelly A. Floyd

The firm structured and planned new business with placement in major national retailers. Negotiated and managed corporate transactions from formation to raising capital and debt for major equipment. Negotiated commercial lease and counseled client regarding labor and employment procedures. Successfully registered client brand name in U.S. for protection of client intellectual property from conflicting or competing uses. Evaluated, planned and managed application process for client registration of additional brands, logos, product names and label design for over 30 products in the U.S., Canada, the European Union, and various other countries.

Counsel: David S. Demian, Chad T. Wishchuk, Kelly A. Floyd, and Allison N. Lantz

​​The firm represented an insurance company and filed multiple lawsuits against customers who failed to pay workers’ comp and bond premiums. With the appropriate pressure, the firm obtained favorable settlements collecting significant returns where the insurance company’s collection efforts had failed. Where the defendants failed to appear in the lawsuits, the firm obtained default judgments and expeditiously enforced the judgments through debtor’s examinations, liens, and bank levies.

Counsel: Kelly A. Floyd