Published Decisions

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Cases in which clients were represented by the firm’s San Diego based attorneys include:

U.S. Supreme
Court Cases

U.S. District
Court Cases

Kevcon, Inc. v. L.B. Contracting, LLC (S.D.Cal. January 3, 2013, Civ. A. No. 12-CV-2014 BEN) 2013 WL 78962

The firm successfully obtained the dismissal of a federal court action filed in California against an out-of-state subcontractor for lack of personal jurisdiction.

State Supreme
Court Cases

Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19

The California Supreme Court agreed with the firm's argument that an arbitrator, not court, decides a statute of limitations defense, after the firm’s lawyers created a new legal argument to resurrect the client's aged claims.

California Court
of Appeal

San Diego Unified Port District v. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4th 1400

In a construction case, the Fourth District Court of Appeal held that the firm's client could not be forced to pay for destructive testing requested by others.

National Financial Lending, LLC v. Superior Court (Brewer Corporation) (Cal. Ct. App., Dec. 18, 2013) 13 Cal. Daily Op. Serv. 13541

2013: The firm’s contractor client participated in a very troubled large scale condominium construction project, which culminated in the client obtaining a $2.7 million judgment against the construction lender. The firm’s aggressive collection efforts included levying on a large limited liability company managed by the judgment debtor. Notwithstanding the notices of levy served by the firm, the related company wrongly transferred $2.08 million to the judgment debtor. The firm filed a motion seeking to make the related company liable for the levy violation, and the related company responded with a motion to quash. The related company also filed a peremptory challenge of the judge—before whom the judgment debtor had previously lost—which was denied. The Fourth District Court of Appeal upheld the denial of the peremptory challenge, adopting the firm’s position that the firm’s motion on the levy violation and the responding motion to quash were merely incidental to the underlying action, such that the related company did not have a right to a peremptory challenge under Code of Civil Procedure section 170.6.

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

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.

Counsel: Jason R. Thornton, Jon F. Gauthier, and Christopher R. Sillari

Agency Decisions

Taylor Frager (N.L.R.B.G.C., No. 21-CA-35568) 2003 WL 22927217 (August 28, 2003)

The firm successfully defended a general contractor’s right to prevent illegal trespassing by union business agents on a private construction job in San Diego. The union filed unfair labor practice charges against the firm's client when its union business agents were denied access to a jobsite and then locked in the jobsite fence to await police assistance. The Office of General Counsel of the National Labor Relations Board agreed the charges should be dismissed because the business agents did not have the right to access the interior of the construction jobsite, especially given the posted no-access and no-solicitation rules.

Groundbreaking GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-406024.4 (August 22, 2012)

2012: 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.

Counsel: David S. Demian and Christopher R. Sillari

In The Matter Of The Request For Review of ASM Affiliates, Inc. DIR Case No. 14-0418-PWH

In the first case of its kind under the California prevailing wage law, the firm successfully defended a Civil Wage and Penalty Assessment issued by the California Labor Commissioner against a cultural resources management firm (“CRM”). The Labor Commissioner sought over $200,000 in back wages, penalties and liquidated damages relating to archaeological monitoring and testing services that the CRM firm had performed prior to and during the construction of a rail improvement project. The firm successfully argued that none of archaeological work was covered by the California prevailing wage law because such work was not work performed in “execution of the [public works construction] contract.” After extensive briefing and a hearing, the Director of Industrial relations agreed with the firm and found that the archeological work performed by the firm’s client was not covered by the prevailing wage law. As a result, the entire assessment was dismissed. A copy of the Director’s decisions can be found here.