P. Randolph Finch Jr. is the managing partner of the firm. He represents construction industry and other business clients. He has represented clients in numerous mediations, arbitrations, trials, writs, and appeals. Mr. Finch’s litigation practice includes public and private works construction cases involving mechanic’s liens, stop notices, and payment and performance bond claims; contract defaults; professional liability of architects and engineers; latent and patent defects in construction and design; extra work claims; changed conditions claims; delay, disruption, impact and acceleration claims; federal, state, and local agency bid protests; defense of construction related claims; enforcement of creditors’ rights and defense of debtors; business litigation such as shareholder disputes, contract interpretation and enforcement, unfair business practices, and California and federal False Claims Act litigation; and lender and vendor disputes. Mr. Finch represents policyholders and their insurers in insurance covered and coverage disputes, and provides business transaction and pre-construction services, including insurance, licensing, and bonding matters; joint venture agreements; construction management agreements; takeover agreements; formation and counseling of corporations and limited liability companies; shareholder and officer agreements; debt work out agreements; development issues; and general corporate counseling.
Mr. Finch is admitted to practice before all California trial and appellate courts, all United States District Courts in California and Colorado, and the United States Court of Federal Claims. Mr. Finch also practices before state and federal administrative agencies and pro hac vice in other states. He is a member of the State Bar of California, San Diego County Bar Association (Construction Law section), American Bar Association (Construction Industry Forum), serves on the Government Relations Committee, Political Action Committee, and Board of Directors of the Associated General Contractors of America, San Diego Chapter, and lectures on construction law issues. Mr. Finch received his juris doctor from the University of San Diego and his legal honors include the highest achievement in Advanced Trial Advocacy. He received his Bachelor of Business Administration, with major honors, from the University of San Diego. He holds Martindale-Hubbell’s highest rating, A.V., in recognition of his high level of skill and integrity. He was named a “California Super Lawyer” in 2007, 2008, 2009, 2010, 2012, 2013 and 2014, a Top 25 San Diego Construction Attorney in 2006, 2007, 2008 and 2011, and a Top 10 Real Estate/ Construction Litigation Attorney in 2012 and 2013, by the San Diego Daily Transcript and a top 50 San Diego attorney in 2015. The San Diego Magazine named him to the 2013 Top Lawyers In San Diego list in Construction Law, and he was a San Diego Daily Transcript’s 2010 Top Influential honoring him as one of San Diego’s Top Industry Leaders.
Mr. Finch serves on the Board of Trustees of the Gillispie School, on the Board of Directors of Voices for Children and as an ex oficio member of clients’ boards of directors. His management experiences enhance his client representation as he is often called upon for business advice in addition to legal counsel.
Arbitration Of Software Agreement
The firm's client contacted with a software developer for a custom, cloud based software application to support the client's business. The developer failed to deliver working software despite the cost doubling from the original contract amount. The firm demanded arbitration on behalf of the client, and the developer defended claiming the client had released all claims as part of a negotiated termination of the development contract. The parties arbitrated the defense of release. After a tentative ruling in favor of the firm's client, the matter was mediated where it settled favorably for the client.
Differing Site Condition, Cardinal Change, Liquidated Damages, Subcontractor Substitution Penalty Assessment - California Central Coast
The firm’s client was the prime contractor on a flood control construction project involving the widening of a creek that flowed into a slough connected to the Pacific Ocean. Shortly into construction, endangered fish species were spotted in the slough, which caused the federal government to forbid maintaining the slough—keeping it open. When the slough mouth closed, slough waters rose into the creek and the construction project, resulting in flooded work areas and impossible dewatering. Construction was delayed and inhibited, and the firm’s client sought compensation from the municipal owner of the project. The municipality responded by withholding potential liquidated damages for late delivery of the project. The municipality also threatened penalties under the California Subletting and Subcontracting Fair Practices Act, contending an equipment supplier used by the firm’s client had been, in fact, a subcontractor added post-bid.
The firm was retained long after construction was complete to review and formalize claims and respond to each claim of the municipality. This included preparing the Response To Proposed Final Estimate and providing a Critical Path schedule analysis to rebut the municipality’s liquidated damages assessment. Via Public Records Act requests and Freedom of Information Act requests to several agencies with overlapping jurisdiction, the firm obtained proof of a differing site condition/cardinal change—the slough mouth closing—and presented the proof to the municipality in a lengthy time lapse evidentiary presentation documenting costs impacts and entitlement to $12mm. Thereafter, and prior to litigation, the firm obtained a settlement with payment to the firm’s client.
Bid Protest Defense / Subcontractor Listing Inconsistency - Caltrans
The firm’s client was the low bidder on a roadway improvement project for Caltrans. A competing bidder protested, contending the firm’s client submitted a detailed/24-hour subcontractor listing that inappropriately expanded the scope of listed subcontractors from the scopes listed in the bid. As precedent, the protester relied on several Caltrans decisions in which Caltrans rejected bids containing such subcontractor scope expansions. The firm responded to the protest, distinguished the awards relied on by the protester, and provided examples of other Caltrans bid protest decisions that justified award to the firm’s client. Caltrans ultimately rejected the protest and awarded the project to the firm’s claim.
Responsibility Challenge - Multi-Prime Public University Construction In Northern California
The firm’s client was the low bidder for the largest bid package on a public university construction project. Another bidder and a union organization protested award of the bid package to the firm’s client, claiming the firm’s client was not a “responsible contractor” under California law. The protester and union organization accused the firm’s client of being unsafe and failing to pay prevailing wage. The firm's response rebutted all of the allegations, and resulted in the awarding body voting to award to the firm’s client.
Sole-Sourcing / Brand Name / “Or-Equal” Dispute - Public Procurement
The firm’s client was a prime contractor on a water treatment facility. During the submittal stage of the project, the owner rejected the contractor’s valve submittal, claiming the proposed product was not “equal” to the product called for by brand name. The firm’s client disagreed but was forced to provide the more expensive brand-name valves. The firm prepared a claim for additional costs of the brand-name valves, contesting the sole-sourcing by the owner and rejection of the contractor’s proposed valves violated state law. After evaluating the claim, the owner issued a change order compensating the firm’s client for supplying the brand-name valves.
Response To Bid Protest - West Coast Port Rehabilitation
The firm’s client was the low bidder on a $75 million port facility rehabilitation on one of the largest marine ports on the West Coast. The second low bidder protested, contending the firm’s client submitted an inadequate Small Business Enterprise (SBE) outreach and commitment plan. The firm responded to the protest and represented the low bidder at the award hearing before the port commissioners. Based on the firm’s arguments, the commissioners rejected the protest and awarded the project to the firm’s client.
Bid Protest Defense (24-Hour Subcontractor Listing) - Caltrans
The firm’s client was the low bidder on a $9 million Caltrans infrastructure rehabilitation project. The second low bidder protested, contending the firm’s client—in its post-bid 24-hour detailed subcontractor list—wrongly added traffic control to the scope of work for its striping subcontractor. Beginning 2014, Caltrans had repeatedly rejected bids based on similar claims, and the protester in this instance cited specific cases as precedent. The firm responded to the protest, distinguishing Caltrans’ past decisions and outlining how there was no unacceptable expansion of subcontractor scope in the post-bid subcontractor listing. Caltrans agreed, and awarded the project to the firm’s client.
Federal Contracting – Teaming Agreement Member v. Prime Contract Awardee
The firm represented a member of an oral teaming agreement who was not awarded a contract despite the teammate being awarded the prime contract. The firm filed suit for its client alleging six causes of action, after obtaining documents from the federal government awarding agency to prove its claims. A likely result of the firm’s Freedom Of Information Act request strategy, the case promptly settled for payment to the firm’s client.
Local Agency Public Work – Inspection Firm v. Design-Builder
The firm represented the Design-Builder in defense of an inspection firm’s claim for extra testing and inspection costs. After analyzing the cost data in comparison to the project records, the firm rebutted the merits and accounting support of the claims resulting in an early settlement without litigation.
Local Agency Public Work – Prime Contractor v. Water District
The firm’s client experienced cost overruns and changed conditions on a northern California waste water treatment plant project. The firm was engaged to summarize the claim components marshall evidence and prepare a comprehensive presentation for a DRB. The DRB ruled in favor of the firm’s client and it was paid nearly in full for the claim items.
Real Estate – Land Buyer v. Land Seller
The firm represented the purchaser of an automotive related property against the seller for costs related to remediation of hazardous materials found on the site during construction. The firm prepared and presented the claim to the uninsured seller and obtained a full recovery.
Trade Contractor v. Construction Manager (Public Works)
The firm represented the construction manager for a public school construction project. A trade contractor filed suit against the School District and the construction manager. The firm prevailed on its motion to dismiss all claims against its client based on precedent holding a construction manager is not a proper defendant in a claim by a trade contractor and the construction manager owes a duty to only its School District client.
Appeal Of Good Faith Effort Determination (Disadvantaged Business Enterprises) - Caltrans
The firm’s client submitted the low bid for a $105 million Caltrans highway project. Caltrans rejected the bid, concluding the bidder failed to use sufficient good faith efforts to identify and involve Disadvantaged Business Enterprises (DBEs). The firm filed an appeal, detailing the extensive DBE outreach efforts by the bidder and how those efforts met the standards set forth by the Code of Federal Regulations, 49 C.F.R. 26, Appendix A. The firm lead a hearing at Caltrans headquarters in Sacramento, after which Caltrans reversed its initial rejection of the bid. Caltrans awarded the project to the firm’s client.
False Claim Act Defense – Multiple Municipal Rail Projects, Western United States
Finch, Thornton & Baird represented two prime contractors that performed large-scale municipal rail projects for the same owner. Both primes were sued for False Claims Act violations by a purported “whistleblower” plaintiff. The plaintiff alleged the contractors had fraudulently substituted cheaper materials and construction methods. The plaintiff sought damages and penalties in excess of $10 million. The firm promptly investigated and refuted the claims—seeking both to win the case and to maintain the contractors’ reputations and relationships with their public entity clients. The firm obtained a court-ordered dismissal of the case without the public entity owner joining the plaintiff’s allegations or the plaintiff having the opportunity to conduct any discovery. The whistleblower plaintiff recovered nothing. The firm also recouped litigation fees and costs from subcontractor insurers, so as to minimize out-of-pocket expense by its prime contractor clients.
Light Rail Construction – Western United States
The firm’s client performed an urban light rail project as a subcontractor. The project suffered substantial design revisions, delays and impacts. Construction concluded with numerous subcontract, pass-through and prime contract claims. After multiple years of project-level negotiation ending in stalemate, the firm was retained to prosecute $6.5 million in subcontract and pass-through claims (discrete changed work/extra costs, delay/extended general conditions, inefficiency/lost-productivity, etc.). The firm’s client recovered on its claims and preserved its relationship with its client and the project owner.
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.
Bid Protest From Second Position – Interstate 5 Rehabilitation
The firm’s client was the second-low bidder on an Interstate 5 rehabilitation project (Engineer’s Estimate $38 million). The firm identified defects in the low bidder’s subcontractor listing and prepared a protest to the California Department of Transportation (Caltrans) seeking award of the project to the firm’s client. The low bidder disputed its subcontractor listing contained a defect and requested Caltrans waive the defect if it concluded otherwise. The firm responded, detailing for Caltrans how California law and Caltrans’ precedent precluded a waiver. Caltrans agreed, rejecting the low bid and awarding the I-5 rehabilitation to the firm’s client.
Defense Of Federal Miller Act Claim – Naval Base Fire Station
The firm’s client was the prime contractor on a federal design-build construction project—a new fire station on a United States Naval Base. A site work subcontractor submitted inflated time and materials billings for substantial work on the project. The design-builder denied the billings and the subcontractor filed a Miller Act lawsuit in federal court. The firm represented the design-builder and forced the case into arbitration pursuant to the subcontract. After a four-day arbitration, the arbitrator agreed with the firm that the subcontractor’s claims were substantially inflated, awarded the subcontractor only a fraction of what it sought and denied the subcontractor’s claim to recover attorneys’ fees. The subcontractor recovered less than the design-builder offered to pay to settle, and after fees and costs the subcontractor netted a negative return for its efforts. Not satisfied with the result, the subcontractor petitioned the federal court to overturn the award—the firm opposed. The federal court agreed with the firm that the arbitration award was proper and denied the subcontractor’s petition, vindicating the design-builder.
Defense Of Qui Tam False Claims Act Lawsuit On Light Rail Project
firm’s client was the prime contractor on a regional light rail modernization project. A qui tam plaintiff filed a lawsuit in the name of the public entity owner, alleging the contractor had falsely substituted materials and cut corners on the project in violation of the California False Claims Act. The firm persuaded the owner to grant the firm the opportunity to rebut the plaintiff’s allegations prior to the owner’s intervention in the case. The firm investigated each of the dozens of allegations and refuted them in a comprehensive presentation to the owner and the qui tam plaintiff. After the presentation, the owner concurrently filed an intervention and motion to dismiss the case. The qui tam plaintiff opposed the request for dismissal, but the court agreed with the firm and the owner that the firm’s client did not violate the California False Claims Act. The court entered judgment for the firm’s client and against the qui tam plaintiff.
Joint Venture Dispute – Large Scale Infrastructure Project
Two European infrastructure contractors retained the firm to assist in resolving a dispute over cost allocations in a joint venture agreement. The project at issue was valued in excess of $640 million. The firm analyzed the joint venture agreement and worked with the joint venture partners to resolve the dispute without litigation and keep the project on track.
Dissolution And Accounting Of Limited Liability Company
The firm represented two members of a limited liability company against a third member in a dissolution and accounting action arising from deadlock and internal dissension. The firm negotiated a settlement of the action pursuant to which the parties agreed to dissolve and wind up the company, and the third member agreed to release his claims against the company and reimburse the company for his portion of unpaid operating expenses. The settlement also included a provision allowing the firm’s client, acting alone, to negotiate a sale of the company’s real property.
Defense Of Contract And Fraud Claims
The firm represented a construction company and its president in defense of breach of contract and fraud claims asserted by a former shareholder of the corporation. The firm negotiated a mutual release of all claims between the parties without payment of any money to the former shareholder.
Recovery From Unlicensed Contractor
The firm successfully pursued claims for disgorgement for unlicensed contracting and for defective construction on a private construction project, resulting in settlements in excess of $1,100,000.00. The firm’s client contracted with an unlicensed contractor to perform work. After the contractor claimed to be a project manager, the firm pursued claims for disgorgement, fraud, negligence and violation of contractors’ license laws against various parties. After investigation and discovery, settlements in excess of the amounts paid to the unlicensed contractor were obtained.
General Contractor v. Owner/Lender – Quasi Public Works
The firm represented a general contractor client on a major rehabilitation project involving the redevelopment of historical land. The project was funded by numerous entities and involved a variety of stakeholders. During the course of the project, change orders and additional work were approved by the owner that were in excess of the scope of the project budget. At the time of project closeout, the owners were unable to make payment and the lenders refused to release payments for work that was performed within budget. At the firm’s direction, the client served a bonded stop notice on the lenders and pursued litigation. Ultimately, despite the owners being unable to make further payments, the client recovered over $1,600,000.00 for itself and its subcontractors.
Commercial Openings, Inc. v. Southwest General Contractors, Inc. San Diego Superior Court Case No. 37-2012-00052831-CU-BC-NC
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. 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.
Carmel Cove Homeowners’ Association, Inc. v. Carmel Cove, LLC, et. al. San Diego Superior Court Case No. 37-2012-00086274-CU-CD-CTL
The firm represented a condominium developer in a construction defect action brought by the homeowners’ association. The homeowners’ association was seeking hundreds of thousands of dollars in allegedly unpaid reserve contributions and thousands of dollars in damages to repair alleged defects at the property. The firm aggressively defended the developer on the grounds that the claims were barred by the statute of limitations and subject to mandatory arbitration in Las Vegas, Nevada as required by the governing CC&Rs. The firm filed a petition to compel arbitration. Prior to the court’s ruling on the petition to compel arbitration, the homeowners’ association dismissed the entire action with prejudice in exchange for a waiver of the developer’s fees and costs.
Protest of International Airport Electrical Upgrade Project
The firm’s client was the second low bidder on a $17 million electrical upgrade project at San Diego International Airport. The firm evaluated the low bid and identified multiple bases for protest. Although the airport had already deemed the low bid responsive, the firm filed a comprehensive bid protest detailing the deficiencies. The Airport reversed its finding of responsiveness and elected to rebid the project. The firm's client won the job on rebid.
West Tech Contracting, Inc. v. San Diego County Regional Airport Authority San Diego Superior Court Case No. 37-2010-00106565-CU-BC-CTL
The firm represented a prime earthwork contractor on the San Diego Naval Training Center Landfill remediation project, part of the $2 billion expansion of San Diego International Airport. During construction, the Airport demanded the contractor dispose of remediated waste at a more expensive and distant landfill than the landfill on which the contractor had based its bid. The firm represented the contractor during project closeout and the subsequent lawsuit for breach of contract, breach of implied warranty and failure to disclose superior knowledge. The Airport filed a cross-complaint for alleged violations of the California False Claims Act. After a six-week jury trial in which the Airport was represented by McKenna, Long & Aldridge/Luce Forward, the jury awarded the firm’s client its increased costs and denied the Airport’s false claims allegations in full. The Airport paid the judgment in full. The lawsuit later became the subject of an investigation by the San Diego Union Tribune Government Watchdog. The Watchdog Report detailed how the Airport rejected settlement offers by the firm’s client that were far less than the jury’s award.
Protest Of Light Rail Transit Upgrade Project – Southern California
The firm’s client submitted the low bid for a major Southern California light rail transit project valued in excess of $55 million. The second low bidder protested award to the firm’s client, alleging the client lacked the required operating joint-use system (freight and passenger) rail experience to be awarded the project. The firm responded to the protest, detailing the low bidder’s experience, and represented the client at a responsibility hearing before a multi-agency panel. Based on the firm’s response and the responsibility hearing, the owner rejected the protest. The second-low bidder appealed the initial rejection and the firm again responded. Ultimately, the owner rejected the appeal and awarded the project to the firm’s client.
Los Angeles Area Community College District v. Construction Management Firm
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 $1,000,000.00. 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.
Subcontractor Default - Caltrans Highway Facility Rehabilitation
The firms' client was the prime contractor on a highway facility rehabilitation project for the California Department of Transportation. The plumbing subcontractor on the project defaulted after performing layout and initial rough-in, resulting in rework, takeover and delay costs to the prime contractor. Notwithstanding the default, the subcontractor sought additional payment from the prime contractor, alleging it was constructively terminated and that the prime contractor violated Caltrans' Buy America requirements. The firm promptly investigated and refuted the Buy America allegations, preserving the prime contractor's relationship with Caltrans. The firm also tendered the prime contractor's costs (including time-related overhead) to the subcontractor's general liability insurance carrier, based on property damage/rework arising out of improper rough-in by the subcontractor. The insurer agreed to participate in an early mediation and, notwithstanding the subcontractor's inability to pay, the firm obtained an insurance-funded recovery for the prime contractor without litigation.
Infinity Structures, Inc. v. ASR Constructors, Inc., et al. Riverside Superior Court (Indio) Case No. INC 10005575
The firm represented a Riverside-based public works framing contractor in disputes covering seven separate public projects. The projects included public schools, law enforcement and aviation facilities, and included multi-prime contract projects. The firm filed stop notices, payment bond claims and multiple complaints on the seven jobs. Prior to incurring extensive discovery and expert costs covering the seven projects, and after the case was assigned to the same trial judge who had entered judgment after trial in favor of another client of the firm [represented by attorneys Finch and Jones against the same defendant], the firm pushed the case into mediation. After a comprehensive presentation by the firm, the case was resolved at the mediation.
General Contractor v. Commercial Project Owner/Developer
The firm successfully litigated and resolved a claim by its general contractor client for over $1 million arising from non-payment for construction of a $10 million mixed use retail/restaurant/office project. The developer filed bankruptcy when his construction lender commenced foreclosure proceedings at the completion of construction. The firm pursued remedies on behalf of its client for payment on stop notice, mechanic’s lien and breach of contract claims. The firm also coordinated five separate actions pending in state and federal courts, including actions by the developer and lender against each other for loan foreclosure and predatory lending and against the firm’s client and its performance bond surety for delay, liquidated damages, consequential damages, and recovery on the bond. Several subcontractors also recorded liens and filed suits. The firm ultimately resolved the various cases with recovery for its client of more than its principal claim with no payment by its client or its surety.
Barnhart-Balfour Beatty, Inc. v. Oxnard School District Ventura Superior Court Case No. 56-2012-00414736-CU-BC-VTA
The firm represented the general contractor relating to a contract balance and claim by the school district that a second floor concrete deck was not built to the contract requirements. The firm’s client settled with its concrete subcontractor allowing the subcontractor to prosecute the claim for its subcontract balance directly against the District. However, when the District cross-complained, the firm was re-engaged to challenge the pleading by the District. With the firm’s special motion to strike the cross-complaint pursuant to California’s Anti-SLAPP (strategic lawsuit against public participation) statute pending, the case was settled in mediation for a payment by the District to the firm’s client for more than 50 percent more than the firm’s client had offered to accept from the District four years earlier.
Balfour Beatty Infrastructure, Inc. v. State of California, Department of Transportation Office of Administrative Hearings Case No. A-0020-2011
The firm represented the general contractor in recovery of damages for inefficiency claims relating to methacrylate application and for return of wrongfully-assessed lane closure reopening delay penalties arising out of bridge rehabilitation work on the Los Angeles Interchange. The firm recovered payment to the contractor of $395,000.00.
Barnhart-Balfour Beatty, Inc. v. Roofing Subcontractor, Roofing Manufacturer and Their Insurers
The firm represented the Design Builder concerning a roof failure on a classified military base project. After asserting the claim against the subcontractors, their sureties, insurers and suppliers, but without filing litigation, the firm negotiated a resolution of the dispute in its client’s favor which included repair of the roof, extension of warranties and payment of the firm’s fees.
Litigation Of Subcontractor And General Contractor Mechanics Liens And Stop Notices Against Commercial Project Owner And Lender
The firm represented a general contractor relating to a multi-use private development in Rancho Cucamonga, California, which included a hotel, gas station, retail stores and offices. The project was bank financed with loans over $36 million and construction costs over $24 million. After litigation had been pending for nearly a year, inclusive of over 25 subcontractor lien claimants, complaints and cross-complaints by and against the developer, lenders, general contractor and subcontractors, a failed mediation and three weeks before the phase one priority-of-title trial, the firm was retained to represent the general contractor. The firm tried the phase one case and established all mechanics lien claimants had priority over the construction lender subject only to a $2.5 million land purchase loan. The firm steered the consolidated actions into mediation and resolved the entirety of the lien cases to the benefit of the general contractor. The firm’s role included representation of the contractor in the owner’s related bankruptcy, trustee foreclosure proceedings, pending subcontractor claims and litigation among lenders for the project.
Qui Tam Plaintiff v. Design Builder
The firm represented the design builder and general contractor against allegations of violations of the California False Claims Act and for Breach of Contract. The plaintiffs sought damages of over $25,000,000.00. After several years of litigation which culminated in a presentation by the firm of significant exonerating evidence, and insurance coverage claims by the firm against its clients’ insurers, the breach of contract case was resolved, and the false claims cause of action dismissed, for a cost of remaining defense payment primarily by the insurer.
Valdivia v. CertainTeed Corp. San Diego Superior Court Case No. GIC885749
The firm defended a client in this multimillion dollar product defect lawsuit involving the installation of replacement windows in stucco construction homes. In connection with this action, the firm filed a cross-action against the manufacturer for indemnity based on the client’s reliance on the manufacturer’s installation instructions for the installation of replacement windows sold by it. In the face of joint motion for summary judgment, the plaintiff and class representative settled in exchange for a nominal amount from the manufacturer. As a result, the firm’s client obtained a complete release and dismissal of a potentially devastating lawsuit against it with no contribution from the client.
Aage Specialty Piping v. Barnhart-Balfour Beatty, Inc.
On behalf of a general contractor, the firm filed suit against a defaulted subcontractor and its performance bond surety for damages arising out of the default. The firm achieved a full recovery for its client including delay damages. Displeased with the $246,000.00 payment by its surety, the subcontractor sued the firm’s client in an alternate forum. Unfortunately for the subcontractor, the firm’s demurrer and motions for sanctions were granted, resulting in a further recovery by the firm for its client.
Balfour Beatty Infrastructure, Inc. v. State of California, Department of Transportation Office of Administrative Hearings Case No. A-0011-09
The firm represented the general contractor in pursuit of damages for delay, disruption and inefficiencies arising out of a bridge widening/modification project on Highway 101 in Corte Madera. After a several hour presentation of evidence by the firm of the client’s entitlement and damages, the case was resolved for payment of $975,000.00 to the firm’s client.
Protest Of Bid Responsiveness And DVBE Outreach Desert Sands Unified School District Project
The firm's client was the low bidder for the electrical bid package on a multi-prime California public high school construction project. After the bid opening, a competing bidder protested the low bid, alleging the firm's client lacked a mandatory installer certification and failed to meet mandatory Disabled Veteran Business Enterprise outreach requirements. The firm immediately filed a comprehensive response to the protest and reached out to the school district's facilities staff. After evaluating the firm's response, the District rejected the bid protest and awarded the electrical bid package to the firm's client.
Class A Office Tower - Design Build
The firm represented the land owner in structuring and drafting the design-build contract for a new Class A office Tower in San Diego, including change order and BIM programs.
The United States of America, for the Use and Benefit of Central Valley Engineering & Asphalt, Inc. v. I.E.-Pacific, Inc., et al. United States District Court (Eastern - Fresno Division) Case No. 1:10-CV-01166-OWW-JLT
The firm’s client was the prime contractor on a federal military (NAVFAC) project at the Naval Air Weapons Station (NAWS) China Lake. At the conclusion of the project, the structural concrete subcontractor submitted a Miller Act payment bond claim and filed a federal court lawsuit. The firm responded to the lawsuit and negotiated a settlement.
Declaration of Bid Non-Responsiveness City of Riverside Fire Station Project
The firm’s general contractor client submitted a prime bid for a $9.3 million City of Riverside fire station project. The City rejected the bid as non-responsive, contending the bidder failed to complete the City’s bid form. Hours before the City Council was scheduled to award the project to a higher bidder, the firm convinced the City to rescind their bid rejection and recommend that the City Council award the project to the firm’s client. The firm’s client was awarded the project.
Community College Construction Delay Claim - Southwest United States
The firm represented the prime contractor on a hard-bid new construction of a nine-building adult learning center on a community college campus. The project ran 233 days beyond scheduled completion and the owner assessed liquidated damages against the firm's client, citing delays caused by a defaulting steel subcontractor. The firm sued to recover the contract balance and extended general conditions. Prior to significant discovery, the firm steered the case into mediation. The firm's presentation first negated the liquidated damage claim by showing the numerous design changes and 174 Requests For Information that occurred during the liquidated damages period. The firm then detailed the prime contractor's entitlement to a compensable time extension using a contemporaneous schedule analysis to identify the critical path impacts. The case settled at mediation with payment to the firm's client.
Medical Office Building Project
The firm represented client in structuring and implementation of every aspect of a state of the art design-build medical office building, including formation of entities, drafting ground lease, drafting design-build construction contract, drafting architect agreements, drafting office leases, drafting consulting agreement and advising on land use planning issues.
Subcontractor Default And Miller Act Claim - Department Of Army Project
The firm represented the prime contractor on a federal drainage channel project administered by the Army Corps of Engineers. One-third of the way into the project, the landscape/drainage subcontractor defaulted and was replaced. The subcontractor ultimately filed for bankruptcy. A supplier to the defaulted subcontractor sued the firm's client on its Miller Act payment bond. The firm cross-complained against the subcontractor and, navigating around the automatic stay resulting from its bankruptcy filing, pressured the subcontractor into mediation. The firm was able to obtain a settlement from the subcontractor, notwithstanding the bankruptcy, that compensated the supplier and the prime contractor for its completion costs.
Claim For Extra Work - International Airport Cogeneration Plant
The firm represented the prime contractor on a design-build cogeneration plant project at John Wayne International Airport in Orange County, California. The prime contractor suffered substantial extra costs due to omissions in the owner-supplied turbine engine systems and additional noise testing and suppression demanded by the owner. The firm submitted formal claims seeking the additional costs and obtained internal owner documents to support the claims using the Public Records Act. The firm then forced the owner to discuss settlement of the claims under a statutory meet and confer process, and obtained a settlement compensating the design builder without having to file a lawsuit.
Caltrans Route 76 Bid Rejection (DBE Outreach)
The firm’s client was low bidder for the $56 million Caltrans project to construct portions of California Route 76. Caltrans rejected the bid based on the notion that the bid lacked sufficient documentation of Good Faith Efforts to reach out to Disadvantaged Business Enterprises (DBEs). The firm prepared a comprehensive response to the rejection detailing how the Good Faith Effort documentation submitted by the firm’s client exceeded the legal minimum. Following a hearing, Caltrans changed its position and accepted the bid of the firm’s client.
Claims of High-Light Electric, Inc. - Southern California
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 bases for the subcontractor’s claims, the subcontractor settled for a fraction of its initial demand.
California Senate Bill 392, Florez: Contractors: Limited Liability Companies Enacted September 30, 2010, as amendments to California's Contractor's State License Law codified at California Business & Professions Code Section 7000 et seq. and California Corporations Code Section 17002
The firm drafted and successfully aided the passing of legislation permitting California limited liability companies to possess California contractor's licenses. Senate Bill 392 fundamentally revised California's Contractors State License Law and authorizes the California Contractors State License Board to begin issuing contractor's licenses to limited liability companies no later than January 1, 2012. Senate Bill 392 allows contractors for the first time to take advantage of the management and tax benefits of organizing as a limited liability company, an advantage advocated by the firm's transactional and estate planning practice groups for the construction industry.
DOE Aggregates, Inc.
The firm represented its client in all aspects of an aggregate material mining operation, including obtaining state and local agency approvals of Conditional Use Permit, reclamation plan, reclamation bonds and insurance, drafting and negotiation of land lease, and mining agreements for total potential mine production of 4,000,000 cubic yards of material.
Bid Protest - Palomar Pomerado West Hospital
The firm represented a bidder on the stet packages for a $1 billion hospital in southern California. The bid resulted in multiple protests which the firm filed and responded to on behalf of the bidder. The firm prevailed and the client was awarded the bid package.
Claims of Asphalt Supplier - Southern California
The firm represented the prime contractor on a Caltrans freeway modernization. At the close of the project, the firm’s client faced substantial claims by its asphalt supplier based on delays, materials rejection and oil escalation. The firm responded to the supplier’s lawsuit and negotiated a resolution.
Jaynes Corporation of California v. Encina Wastewater Authority San Diego Superior Court Case No. 37-2008-00102134-CU-BC-NC
The firm represented the general contractor in pursuit of delay and disruption claims arising out of construction of a wastewater treatment facility. The firm managed project closeout and submission of Government Code claims and, ultimately, filed suit against the owner. The firm then performed critical discovery and pushed the case to mediation. The case was settled with payment to the firm’s client after the firm presented a comprehensive critical path schedule and cause-effect disruption analysis to the owner and mediator.
Jaynes Corporation of California v. Pro-Tech Fire Protection Systems Corporation San Diego Superior Court Case No. 37-2008-00051630-CU-BC-NC
The firm’s client was the prime contractor on a large-scale water treatment plant project. The fire protection subcontractor on the project defectively installed its fire suppression system, resulting in damage to the work of other subcontractors. The firm filed suit and collected from the fire suppression subcontractor and its insurer despite an initial denial of coverage.
Submission of Proposed Final Estimate Caltrans Contract No. 07-117844
The firm’s client was the prime contractor on a five-year project to widen Interstate 405 in the Culver City/Santa Monica area. The project suffered from numerous delays, disruptions, scope changes and differing site conditions, which resulted in more than $40 million in claims against Caltrans. The firm worked on the contractor’s comprehensive Response To Proposed Final Estimate, which detailed the dozens of prime contractor and subcontractor claims. The claims were later settled.
Quality Interiors, Inc. v. Brawley Luckey Ranch, L.P. et al. [and consolidated cases] Imperial County Superior Court Case No. ECU04153
The firm represented six clients with claims for payment on a private 500 unit development project and related public improvements located in Brawley, California. Despite an insolvent developer, the firm recovered nearly $6 million for its clients, with three site improvement contractors each recovering in excess of 100 percent of their principal claims. The firm pursued litigation for recovery on public works payment bond, mechanic’s liens, bonded stop notices, breach of contract, and related causes of action against the project owner, construction lender, homeowners, and bond sureties. The case concerned a $35 million construction loan which the lender ceased funding as the project property value fell to less than $4 million. The firm successfully argued that the borrowing base credit line theory claimed by the construction lender to cease funding and paying contractors was invalid and did not absolve the lender of liability on either stop notices or mechanic’s lien claims.
California Retail And Restaurant Business Entity Formation And Real Property Acquisition
Negotiated and structured acquisition of restaurant chain serving San Diego and Riverside Counties, including structuring equity incentives for key employees.
RePipe - California, Inc. v. W I T Pipeline Rehab et al. San Diego Superior Court Case No. 37-2008-00090723-CU-BC-CTL
The firm initiated litigation on behalf of a pipeline rehabilitation subcontractor on a City of San Diego Metropolitan Wastewater Department sewer rehabilitation project. The firm sued the general contractor, its payment bond surety, and the project owner to recover the principal amount due of $270,000.00 via claims for breach of contract, recovery on payment bond, and recovery on public works stop notice. The general contractor alleged it was entitled to an offset from subcontractor due to delays on the project and liquidated damages assessed by the owner. One month before trial, the firm recovered $336,000.00 for its client via settlement, more than the principal claim.
Urata & Sons Cement, Inc. v. Lodi Unified School District et al. San Joaquin Superior Court Case No. CV033417
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.
Acquisition Of Mining Rights And Operations
Negotiated and structured acquisition of mining rights via a long term mining lease on behalf of client. The firm also advised client on the complex environmental and permitting issues related to operations, including environmental indemnity agreements and the conditional use permit required for the mine.
Select Electric, Inc. v. Balfour Beatty/Ortiz Enterprises, Inc. et al. San Diego Superior Court Case No. 37-2007-00066282-CU-BC-CTL; Imperial County Superior Court Case No. ECU03524
The firm initiated litigation on behalf of the electrical subcontractor on the Metropolitan Transit System’s light rail construction project which extended the San Diego Trolley system to eastern portions of San Diego County. The project had been severely delayed and disrupted and the firm filed suit to recover: (1) subcontract balance held by the general contractor based on a liquidated damages claim asserted by the owner; and (2) delay and disruption damages incurred by the electrical subcontractor. The firm recovered, via settlement, in excess of 100 percent of the subcontractor’s principal delay and disruption damages from the owner and the entire subcontract balance from the general contractor. The firm’s client avoided what became a multi-month jury trial between the owner and general contractor in Imperial County.
California Retail And Restaurant Business Entity Formation And Real Property Acquisition
Negotiated and structured acquisition of restaurant chain serving San Diego and Riverside Counties, including structuring equity incentives for key employees.
Milcon Services, Inc. v. Hemet Unified School District (Western Rim Constructors, Inc.) Riverside Superior Court Case No. RIC500747
This case involved a challenge to the award of a track and field improvement trade package for a Riverside County public high school to the firm’s client. Based on the low bidder’s failure to list an approved synthetic track surfacing manufacturer and installer, the firm successfully protested and the District awarded the trade package to the firm’s client. The rejected low bidder then filed suit, seeking a judicial mandate that the District reverse its decision and award it the project. The firm successfully defended the lawsuit and convinced the court to adjudicate the matter on an expedited schedule, so as to allow the firm’s client to begin construction without delay.
West Coast Air Conditioning Co., Inc. v. Fountain Valley School District Orange County Superior Court Case No. 07CC05300
Prime contractor on a $12.875 million four school modernization project suffered delay, disruption, and inefficiency damages as a result of unclear plans and specifications, and late completion of predecessor activities by other contractors to the District. The firm filed suit to collect the damages. Following over a year of litigation and cordial meetings with the District, its counsel, and its experts to explain the claim, the case was mediated to a settlement with the firm’s client being paid $1.2 million for delay and disruption damages, and receiving a thank you letter from the District for building a quality construction project.
GBC Concrete and Masonry, Inc. v. Altadena Lincoln Crossing, LLC et al. Los Angeles Superior Court Case No. GC037960
The firm’s trade contractor client sued the project owner and lender to recover $311,000.00 for improvements to the project. The firm’s client’s early litigation offer to accept $336,000.00 was rebuked by the defendants. After obtaining a pre-judgment writ of attachment and summary adjudication of its breach of contract and lien foreclosure causes of action, and attaching rents due the project owner, the case settled with the firm’s client being paid $475,000.00.
Protest of Award to HAR Construction by Jaynes Corporation of California
This matter involved the award of a $4 million educational building project by the Southwestern Community College District. Based on an irregularity in the low bidder’s bid amount, the firm successfully protested and the District rejected the low bid and awarded the project to the firm’s client after two public hearings conducted by the District to consider the matter.
Protest of Award to W.E. O’Neil Construction Co. by Jaynes Corporation of California Eastern Municipal Water District Administrative Office Building Expansion
The firm protested the award of a $19 million office building project by the Eastern Municipal Water District based on inconsistencies in the low bidder’s subcontractor listing. The Water District responded by rejecting all bids. On rebid, the Water District revised its bidding instructions to eliminate ambiguities pointed out by the firm. The firm’s client was the low bidder and awarded the contract following the rebid.
County of Imperial v. RSM2 Contractors, Inc.
The firm represented the general contractor in disputes concerning the destruction by fire of a $1.5 million public project that was 99 percent complete. The public entity owner and its insurance carrier claimed the general contractor was contractually obligated to obtain builder’s risk insurance coverage for the loss and despite not having it, was responsible for the cost to rebuild. The firm argued the existence of duplicate coverage through a public entity risk sharing policy absolved the contractor of liability for the alleged failure to obtain insurance. Following mediation and a series of negotiations, the firm’s client avoided liability for the loss with insurance carriers paying the firm’s client to rebuild the project.
Protest of Award to Gamut Construction Company, Inc. by Jaynes Corporation of California City of Escondido Fire Station No. 1
The firm protested the award of a $12 million fire station project on the basis of an irregularity in the low bidder’s bid bond. The firm succeeded and the City Council rejected the low bid and awarded the project to the firm’s client despite a significant bid spread.
Time And Alarm Systems v. Edge Development, Inc. et al. San Bernardino Superior Court Case No. SCVSS 143134
Second-tier subcontractor initiated litigation to collect the contract balance on a $42 million dollar new high school project which was completed over one year behind schedule with delay and disruption claims by more than a half dozen subcontractors totaling over $8 million dollars. After serving as project counsel since 2004, the firm represented the general contractor in responding to the subcontractor claims and pursuing the owner for payment of the legitimate amount of the same, as well as the additional costs of the general contractor. Through a series of liquidation agreements, mediations, and negotiations with the owner and its counsel, the firm’s client avoided liability to the subcontractor claimants beyond the amount paid by the owner, and recovered additional compensation for its work, with the District paying the firm's client over $2.6 million dollars to resolve the consolidated lawsuits.
Earth Patterns v. Garville et al. Orange County Superior Court Case No. 03CC15063
Arbitration regarding private work of improvement resulting in judgment in favor of firm's contractor client on complaint and zero recovery on cross-complaint by property owner opponent for over $250,000.00.
Bid Protest Defense (24-Hour Subcontractor Listing) - Caltrans
The firm’s client was the low bidder on a $47 million Caltrans infrastructure rehabilitation project. The second low bidder protested, contending the firm’s client—in its post-bid 24-hour detailed subcontractor list—wrongly expanded the scope of work allocated to a listed Cold Planing subcontractor. Beginning 2014, Caltrans had repeatedly rejected bids based on similar claims, and the protester in this instance cited specific cases as precedent. The firm responded to the protest, distinguishing Caltrans’ past decisions and outlining how there was no unacceptable expansion of subcontractor scope in the post-bid subcontractor listing. Caltrans agreed, and awarded the project to the firm’s client.
Taming the Phone in Your Pocket: How to Harness Mobile Technology for Project Documentation and Risk Management
New Developments in Public & Private Works Construction Law
November 1, 2011: presented by P. Randolph Finch Jr. for San Diego County Bar Association, Construction Law Section.
Construction Default Reprocurement Seminar
The Future of K-12 Construction: Alternatives to Design-Bid-Build
Proving and Defending Construction Delay Claims
June 6, 2006: Presented by P. Randolph Finch Jr. and Kenji Hoshino at the San Diego County Bar Association for the Construction Law Section.
The Best Delivery Method For Your Project
April 19, 2006: Presented by P. Randolph Finch Jr. at the California Association of School Business Officials, 2006 Annual Conference.
Building a Foundation for Managing Complex Construction Law Issues in California
The Little Red School House: Alternatives to Hard Bid Construction in California
Mechanic’s Lien Law & Strategies in California