Representative Experience

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Nearly all litigation matters handled by the firm result in resolution on confidential terms. For this reason, and to protect client confidentiality, non-public results are not published. Following is a list of public results in trials, appeals, agency rulings, arbitrations, and mediations. These individual results were dependent on the facts of each case, and results will differ if based on different facts.

Construction
Law

Subdivision Development Bond Exoneration

The firm was retained by a multi-home developer to obtain a partial release of surety bonds securing a large subdivision development. The client’s goal was to perform a reduced scope of work and obtain exoneration of the bonds from the public entity as the development was no longer economically viable. The firm devised a plan and through litigation obtained complete exoneration of bonds with penal sums in excess of $6.5 million.​

Counsel: P. Randolph Finch Jr. and Jason R. Thornton

Subcontract Default And Surety Takeover

The firm was engaged by a prominent specialty constructor with a mixed backlog of bonded and unbonded work to work out of a severe negative cash flow and insolvency problem. The client’s principals faced personally guaranteed debts of over $4.6 million. Within just 90 days, the firm counseled its clients through a workout that resulted in payouts of less than half of the debt, allowing the principals to re-start their careers.​

Counsel: P. Randolph Finch Jr. and Adam C. Witt

Wrongful Termination Of Construction Manager By Public School District

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

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.

Counsel: P. Randolph Finch Jr. and Jon F. Gauthier

Recovery Against School District Following Discovery of Asbestos

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

Subcontractor v. General Contractor, Payment Bond Surety and Public Agency Project Owner

The firm represented a subcontractor in a claim for recovery of subcontract balance and extra work performed on a publicly funded construction project. The firm was brought in at the conclusion of construction to prepare stop payment notice, payment bond and contract claims and file suit to recover the balance due for work performed by subcontractor on the project. The matter settled after mediation with payment to the firm's client for the full subcontract balance, attorneys' fees and interest.

Counsel: P. Randolph Finch Jr., Andrea L. Petray and Christopher D. F. Foster

General Engineering Contractor v. Inland Empire City

The firm was retained by the general engineering contractor at the end of a public work construction project to pursue a claim against the City for differing site conditions. A Disputes Review Advisor had opined the claim had no merit. In order to overcome the claim denial, the firm took a fresh look at the factual and legal bases for the claim, and evaluated available public records as well as the project files. The firm re-packaged the claim and proved that utility poles had been moved post-bid and pre-construction by others causing a differing site condition, and that the City knew of these facts and had not disclosed them. The claim settled following an evaluative mediation process where the mediator was asked to opine on the merits of the claim.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Extra Work Claims – Subcontractor v. General Contractor

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

Wrongful Termination Of Prime Contractor (Settlement)

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

Public Works: Dismissal After Demurrer Of General Contractor Claim Versus Subcontractor Performance Bond Surety

The Firm defended a performance bond, obtaining a dismissal of the client after filing a series of demurrers. A large general contractor sued a subcontractor and its performance bond surety alleging defects in work performed by the subcontractor. Subcontractor and general contractor had signed an agreement tolling the ten-year statute of repose, the surety had not. The general contractor argued the surety was bound by the subcontractor’s agreement to toll claim deadlines. The Firm argued the surety was not bound and all claims were barred in two demurrers, leading to dismissal of its surety client before any other litigation or discovery was required.

Counsel: Louis J. Blum and Daniel P. Scholz

Dispute Over Enforceability Of “Settlement Agreement” (Arbitration)

The Firm represented an auditing company in a dispute with a software development firm hired to develop software on a cost plus contract with a guaranteed maximum price. After several change orders, the software firm failed to deliver the promised software. The Firm initiated arbitration against the software developer seeking to recoup all funds paid after the initial scoping phase. The software developer defended the claim by arguing the client had released its claims in prior closeout negotiations where certain invoices were settled at a discount. An arbitration hearing was held on the question of settlement and release. After a tentative decision in favor of the client, the case was settled favorably to the client.

Counsel: Louis J. Blum

Public Works: Prime Earthwork Contractor Claim For Extra Quantities

The Firm represented its client earth work contractor against a public water district in Northern California, in a claim for extra earth work quantities required by the owner’s direction to excavate deeper than indicated on the plans. The client’s field personnel did not clearly document the direction or extra quantities. Working with the client, the Firm was able to calculate and graphically demonstrate the extra work based on post completion borings. The Firm obtained a favorable settlement at mediation, without having to file any litigation.

Counsel: Louis J. Blum

Public Works: Claim For Delay, Disruption And Extra Work

The Firm sued a large prime contractor and its performance bond sureties on behalf of its subcontractor client after the client was unable to informally negotiate a multi-million dollar claim for delay, disruption, and extra work. After filing suit, the Firm was able to negotiate a favorable and prompt settlement and prompt payment.

Counsel: Louis J. Blum

Public Works: Prime Contractor Claim Against Caltrans For Changed Conditions, Delay, And Disruption

The Firm represented the prime contractor and one of its subcontractors against Caltrans on a claim for extra costs from delay and disruption caused by rock hardness well in excess of that shown in the soils report. Caltrans refused to entertain any part of the claim or even mediate. After the Firm completed its depositions of Caltrans personnel, Caltrans paid nearly the entire claim amount of close to $1.5 million.

Counsel: Louis J. Blum

Insurance Coverage: Failure to Defend

After mediation, the Firm obtained a settlement on behalf of its contractor client from the client’s directors and officers insurance carrier for costs arising from the carrier’s failure to provide a defense.

Counsel: Louis J. Blum

Prompt Payment Dispute (Bench Trial)

The Firm defended General Contractor in a claim by a Subcontractor for violation of California’s prompt payment laws. The General Contractor had withheld funds due to a public works prevailing wage labor compliance audit of the Subcontractor’s payroll and withholding by the project owner. The issue was tried to a judge, where the Firm showed that General Contractor was entitled, as a matter of law, to withhold all funds and could not be liable for breach of contract or prompt payment violations.

Counsel: Louis J. Blum

Public Works: Defense Against Claims Arising From Damaged Pipeline

The Firm represented its client in claim arising from damage caused to a oil pipeline while the client was constructing public improvements. The Firm first obtained insurance coverage for the client, then defended the claim. The claim was resolved with insurance funds, at a substantial discount from the plaintiff’s actual costs and with no out-of-pocket cost or loss to the client.

Counsel: Louis J. Blum

Defective Grading Dispute (Jury Trial)

The Firm represented Building Owner against a retaining wall builder, claiming repair cost resulting from subsidence and wall movement. A jury verdict was rendered against the retaining wall builder and in favor of Building Owner.

Counsel: Louis J. Blum

Lower Tier Subcontractor v. General Contractor and Miller Act Payment Bond Surety

The firm represented a subcontractor on a federal work of improvement in Arizona. The firm filed suit against the general contractor and its Miller Act payment bond surety in the United States District Court, District of Arizona, and prosecuted the claims, resulting in payment to the firm’s client of more than $1.5 million.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Subcontractor v. General Contractor, Payment Bond Surety and Public Agency Project Owner

The firm represented subcontractor in a claim for recovery of subcontract balance and extra work performed on a publicly funded construction project. The firm was brought in at the conclusion of construction to prepare stop payment notice, payment bond and contract claims and file suit to recover the balance due for work performed by subcontractor on the project. Despite a cross-complaint against the firm’s client, the case settled after mediation with payment to the firm’s client of the full subcontract balance, interest and attorneys’ fees.

Counsel: P. Randolph Finch Jr., Andrea L. Petray and Christopher D. F. Foster

General Contractor v. County of San Diego

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

Defense of Federal Miller Act Claim

The firm’s client was the prime contractor on a federal design-build construction project on a military base in Northern California. The project plumbing and HVAC subcontractor submitted inflated billings for work on the project and claimed additional costs relating to delays and labor inefficiencies. The design-builder denied the subcontractor’s claim and the subcontractor demanded arbitration for approximately $1.9 million against the firm’s client and the client’s Miller Act surety. The firm represented the design-builder and the surety. After limited discovery, the firm worked closely with the contractor to investigate and analyze the subcontractor’s claims relating to delays and inefficiencies and refuted them in a comprehensive presentation during mediation. As a result of the firm’s efforts, the subcontractor realized the inflated nature of its claims and agreed to settle the action for barely a third of its original demand.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Defense of Civil Wage and Penalty Assessment By The California Labor Commissioner

The firm’s subcontractor client was served with a Civil Wage and Penalty Assessment by the California DLSE relating to a lower-tier subcontractor’s work at the San Diego Airport. The assessment included potential liability of over $100,000, for alleged unpaid prevailing wages, substantial Labor Code penalties, liquidated damages and interest. The firm successfully asserted the innocent general contractor “safe harbor” defense under the California Labor Code and was able to convince the DLSE to not assess any penalties against the firm’s client. The firm’s efforts saved our client significant costs as well as minimized its labor history for future public work prequalifications.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

General Contractor v. Public Owner

The firm’s client was the general contractor on a local public works project. The general contractor contended the project was delayed and disrupted by the public owner, the project architect and the project’s construction manager. The general contractor claimed that the public owner’s sole source specifications were illegal and caused the delays to the project. The public owner claimed liquidated damages and that certain work items were either improperly or insufficiently completed and sought approximately $500,000 from the general contractor. The firm represented the contractor in settlement conferences and mediation. As a result of the firm’s efforts, the public owner released its claims against the contractor for liquidated damages and backcharges and agreed to pay the contractor $675,000 to resolve the claims. The firm’s knowledge of legal limitations on public works specifications, and project delay and extra work claims allowed the general contractor to succeed in its claims without a lawsuit against the public owner, allowing the contractor to minimize its claims history.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Litigation Of General Contractor Mechanic’s Liens Against Commercial Project Owner

The firm represented a general contractor relating to a construction of a charter school in San Diego, California. After failing to be fully paid, the general contractor turned to our firm for assistance. We assisted in recording a mechanic’s lien against the property and filed a lawsuit against the charter school and the property owner for approximately $136,000. Upon the recording of the lien and filing a lawsuit, the school went out of business and the firm successfully negotiated settlement with the property owner. The firm’s client received full payment in the matter.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

General Contractor v. City of San Diego

The firm’s client was the general contractor for the construction of a City of San Diego lifeguard tower. The general contractor contended the project was delayed and disrupted by City’s management of the Project and the project plans. The City claimed liquidated damages of $107,000 and approximately $20,000 in backcharges from the general contractor. The firm represented the contractor in settlement conferences and mediation. As a result of the firm’s efforts, the City released all claims against the contractor for liquidated damages and backcharges and agreed to pay the contractor over $250,000 to resolve the contractor’s claims for additional work and delays.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Bid Protest – San Diego Unified

The firm’s client was the low bidder for a San Diego Unified School District contract. The client had inadvertently failed to provide the correct license number for one of its listed subcontractors. The client provided the District with the correct number within 24 hours. However, the District found the client’s bid non-responsive and rejected it. The firm protested the District’s rejection based on California law that allows contractors to remedy such bid errors within 24 hours. Through the firm’s knowledge of bidding laws and persuasion, the District accepted the firm’s protest and rescinded its rejection of the client’s bid. The firm’s client was then awarded the $3 million project.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Subcontractor v. General Contractor and Project Owner

The firm represented a national electrical subcontractor in a claim for recovery of delay and disruption damages. The firm was brought in after completion of construction to price and pursue the claim. The matter settled after mediation for a seven figure payment to the firm's client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Negotiation of Bid Withdrawal

The firm's client was the successful bidder on a hard bid project for the County of San Diego. After award, the firm's client identified significant discrepancies in the contract documents, adding significant costs. The County denied any cost increase was warranted and directed the firm's client to sign the contract or relinquish its bid bond. After the client requested assistance, the firm intervened and the County agreed to withdrawal of the bid and exoneration of the bid bond.

Counsel: Louis J. Blum and Kelly A. Floyd

Claim for Additional Grading Quantities

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

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Bid Protest From Fourth Position - Water District

The firm’s client submitted the fourth lowest bid to construct water treatment facilities for a municipal water district. After the low bidder pulled its bid based on an a bid error, the firm requested copies of the second and third-low bids to determine whether they complied with the bidding requirements. The firm discovered several defects in the bids that could have resulted in competitive advantages to the second and third-low bidders (e.g., inadequate bid bond, use of unapproved manufacturers). The firm protested and the municipality rejected the second and third-low bids, adopting the firm’s legal analysis. The water District awarded the project to the firm’s client.

Counsel: Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor Claims And Product Substitution: Federal Military Installation

The firm’s client was a prime contractor on a federal military base construction project. As the project came to completion, the flooring subcontractor submitted numerous claims for alleged time and materials work authorized by the prime contractor’s onsite management. The firm’s client disputed a large portion of the claims and also discovered a tile substitution made by the subcontractor. In order to protect the prime contractor, the firm acted promptly to ensure the federal government became aware of, and accepted, the tile substitution. The firm then investigated the claims of the subcontractor, which had filed a Miller Act suit against the prime contractor and its surety. Prior to service of the lawsuit on the firm’s client, and before incurring litigation costs, the firm negotiated a settlement for payment of a fraction of the subcontractor’s claims.

Counsel: Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Job Order Contract Protest From Second Position – California Municipality

The firm’s client was the second low bidder for a municipal job order contract. The low bidder had included a miscalculation on one of its bid forms. The firm protested the low bid based on California law that precludes acceptance of bids containing arithmetical errors—errors that would allow the bidder to pull its bid without forfeiting its bond, under Public Contract Code section 5103. The municipality initially responded to the protest by stating it intended to waive the deviation and award to the low bidder. The firm met with municipality representatives and its lawyer to explain why the deviation could not be waived. After the meeting, the municipality rejected the low bid and awarded the contract to the firm’s client.

Counsel: Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Differing Site Condition – U.S. Military Design-Build Project, Island In Pacific Ocean

The Firm's client, a federal design-build contractor, encountered a differing site condition (hard rock) while constructing a Navy Seal training facility located on an island in the Pacific Ocean. Due to the logistical challenges of the island project, construction largely halted while large equipment was shipped in. The Navy contended the hard rock was disclosed in geotechnical reports issued prior to bid, such that the contractor had to bear 100 percent the direct costs to remove the rock and the associated delay and disruptions costs. The Firm negotiated directly with the Navy and achieved a total reversal of the Navy's position - an agreement to fully compensate the contractor for the additional costs and delays.

Counsel: Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Christopher R. Sillari

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Zurich Specialties London Limited v. A&D Fire Protection, et al. San Diego Superior Court Case No. 37-2013-00048004-CU-BC-CTL

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.”

Counsel: David W. Smiley and Kelly A. Floyd

Defense of Claims Against Construction Manager By Trade Contractor

The firm successfully defended claims by a trade contractor against a construction manager and owner’s agent on a multiunit construction project. The firm’s client was the construction manager and owner’s representative for the work, responsible for the management of various trade contractors. A trade contractor sued the firm’s client claiming to be entitled to significant additional costs. Following investigation and discovery, the firm was able to obtain a full dismissal of its client for a nuisance value settlement.

Counsel: Nowell A. Lantz

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

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

Government Relations - Prevention Of Mental Health Facility Consolidation

The firm's client operated a retail facility within a Southern California shopping center. Days before the issue was to be voted on by the local County Board of Supervisors, the retailer learned of the County's plan to consolidate several health and human services facilities into a single facility within the shopping center. The proposed facility would house drug treatment and mental health facilities. Days before the vote, the firm mobilized a public opposition that included the principal of a nearby elementary school. The firm also reached out to its government contacts and appeared before the County Supervisors to seek a delay, in part because of procedural irregularities the firm identified in the facility selection process. The Supervisors granted the firm's request to delay approval of the plan, which allowed for further negotiations and community involvement. Ultimately, the retailer, community members and the County negotiated a modified plan that did not include consolidation of mental health and drug abuse facilities into the retail area or near the elementary school.

Counsel: Dustin R. Jones

Project Counsel: California Pedestrian Bridge Project

The firm’s contractor client encountered differing site conditions (hard rock) during construction of a pedestrian bridge for a California municipality. The contractor brought in the firm to assure compliance with notice and claim requirements of the public contract and respond to defenses asserted by the municipalities. Resolution was achieved at the project level prior to formal dispute resolution becoming necessary.

Counsel: Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

General Contractor v. Public Owner

The firm’s client was the general contractor on a local public works project. The general contractor contended the project was delayed and disrupted by the public owner and its construction manager. The public owner claimed liquidated damages and that certain work items were either improperly or insufficiently completed and withheld approximately $2.2 million owed to the general contractor. The firm represented the contractor in multiple settlement conferences, site inspections and mediation. The firm worked closely with the contractor to investigate and analyze each of the public owner’s claims and refuted them in a comprehensive presentation to the public agency’s representatives. As a result of the firm’s efforts, the public owner released the withheld amounts and executed an additional $1.2 million change order to compensate the general contractor for its delay, extra work, and disruption costs. The firm’s knowledge of delay and extra work claims allowed the general contractor to succeed in its claims without a lawsuit against the public owner, allowing the contractor to minimize its claims history.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

General Contractor v. Subcontractor

The firm successfully brought a lawsuit by a general contractor against a subcontractor. The subcontractor quit work on a construction project because of a dispute over payment and scope with the general contractor. The general contractor’s lawsuit sought damages for delays to the project and extra costs to supplement the subcontractor’s work. The subcontractor brought a cross-complaint against the general contractor for alleged damages resulting from a payment dispute on a separate construction project. Because of the firm’s knowledge of construction delays and project requirements, the firm successfully negotiated a settlement with the subcontractor with the general contractor receiving installment payments of least $300,000. Additionally, the subcontractor agreed to dismiss its cross-complaint with prejudice with no liability or amount owed by the firm’s client or surety.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Corona Summit, LLC v. GMI Construction Services, Inc. Superior Court Case No. 30-2013-00639696-CU-BC-CJC

The firm’s client was sued for alleged construction deficiencies on a commercial building that was substantially completed more than 10 years ago. The firm successfully demurred to the action on the basis that the claim was barred by the 10-year statute of repose. As a result, the client was dismissed by both the owner and developer in exchange for a waiver of costs.

Counsel: David W. Smiley, and Daniel P. Scholz

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.

Counsel: P. Randolph Finch Jr. and Nowell A. Lantz

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.

Counsel: P. Randolph Finch Jr. and Nowell A. Lantz

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

General Contractor v. Subcontractor  

The firm successfully defended a general contractor and its surety against a lawsuit from a mechanical subcontractor. The subcontractor quit work on a construction project because of a dispute over payment with the general contractor. The subcontractor’s lawsuit sought approximately $200,000 plus attorneys’ fees for alleged contract and extra work. The firm brought a cross-complaint on behalf of the general contractor against the subcontractor for damages resulting from the subcontractor’s failure to complete its work on the construction project. Early in litigation, the firm successfully obtained a writ of attachment against the subcontractor for its completion costs, which required the subcontractor to turn over the amount to the County Sheriff until the lawsuit was resolved. Additionally, the firm brought a motion for summary judgment against the subcontractor seeking to dismiss all of the subcontractor’s claims against the general contractor and surety and to award the general contractor damages against the subcontract. The court tentatively granted the firm’s motion for summary judgment. Prior to the motion for summary judgment being officially ruled upon, the subcontractor agreed to dismiss its lawsuit with prejudice with no liability or amount owed by the firm’s client or surety.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Federal Design Build Contractor v. Structural Engineer

The Firm represented plaintiff design/build contractor in a dispute with defendant civil engineer after the Department of the Navy required plaintiff to perform structural repairs to several portions of a temporary lodging facility at Camp Pendleton. The Firm sued the defendant engineer, alleging that defendant breached its contract with the plaintiff and fell below the standard of care when it failed to design several portions of the project in accordance with the Navy’s requirements. The parties reached a settlement before any discovery or motion work was required.

Counsel: Louis J. Blum

Trade Contractor v. Thomas Jefferson School of Law

The firm represented plaintiff subcontractor who installed a glass and glazing system at defendant’s new law school campus facility in downtown San Diego. After defendant refused to pay more than a fraction of the contract balance, the firm sued for breach of contract, reasonable value of services, and for violation of California’s prompt-payment statutes. The firm quickly negotiated a settlement which resulted in payment of plaintiff’s contract balance, plus interest and attorneys’ fees.

Counsel: Louis J. Blum

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.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Protest Of Municipal Project

The firm represented the low bidder on a street and bicycle path improvement project for a large California city. The city rejected the low bid on its assertion the bid was non-responsive and the bidder was non-responsible, due in large part to a subcontractor listing error. The firm filed a comprehensive protest of the rejection and represented the client in a bidder responsibility hearing before the City Attorney. After the hearing, the city reversed its initial bid rejection and awarded the project to the firm’s client.

Counsel: Jason R. Thornton and Dustin R. Jones

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.

Counsel: David W. Smiley and Adam C. Witt

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Represent Wall Contractor In Claim Against Developer

The Firm represented a retaining wall subcontractor in a dispute with the developer of a private residential development. After demanding arbitration, the Firm negotiated a favorable settlement payment to the client.

Counsel: Louis J. Blum and David W. Smiley

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest Of Airport Upgrade Project – Ensley Electric, Inc. County Of San Diego (Borrego Valley Airport)

The firm’s client submitted the second-low bid for a municipal airport upgrade project. The low bidder submitted documentation of its “good faith effort” to reach out to Disabled Veteran Business Enterprises (DVBEs), but failed to fully comply with the DVBE requirements of the bid documents. The firm prepared a successful protest of the low bid which resulted in award of the project to the firm’s client.

Counsel: Dustin R. Jones

City of San Diego Subcontractor Substitution Hearing

The firm’s client requested substitution of a listed subcontractor due to the subcontractor’s failure to comply with contractual safety requirements. The subcontractor opposed substitution contending it had complied with all safety requirements. Following a contested evidentiary hearing, the City’s appointed hearing officer granted the substitution.

Counsel: Jason R. Thornton

ProUsys, Inc. v. Taisei-T&K Joint Venture San Bernardino Superior Court Case No. CIVRS 910476 (Lead Case)

The firm represented the programming subcontractor in complex, multi-party litigation arising from the expansion of Regional Wastewater Treatment Plant No. 4 for the Inland Empire Utility Agency. In total, the claims in the litigation included 800 days of delay, design changes, extra work, unforeseen site conditions and false claims allegations. The firm’s client sought payment of its contract balance and for change order work, and to avoid liability for delay damages. The case resolved globally at mediation on terms that included payment to the firm’s client.

Counsel: Jason R. Thornton

Caltrans-Response To Proposed Final Estimate

Following completion of construction, Caltrans notified the firm’s client that it had re-calculated the final pay quantities and that the firm’s client had been overpaid. Caltrans demanded reimbursement. In evaluating the claim by Caltrans, the firm’s client determined the pay quantities had been underestimated and it was owed additional compensation. The firm assisted the client with a detailed response to the proposed estimate, disputing Caltrans’ quantities. The response to the PFE led to settlement negotiations which resulted in Caltrans agreeing to pay the firm’s client additional compensation.

Counsel: Jason R. Thornton

Community College Subcontractor Substitution Hearing

The firm’s client requested substitution of a listed subcontractor based on its failure to prosecute its work in a timely manner. The subcontractor’s failure to advance the work was delaying the project’s completion. The subcontractor opposed substitution contending it had not been paid for work performed. Following a contested evidentiary hearing, the college’s appointed hearing officer granted the substitution.

Counsel: Jason R. Thornton

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.

Counsel: P. Randolph Finch Jr. and Allison N. Lantz

Protest Of School Modernization Bid – West Coast Air Conditioning, Inc. Cajon Valley Union School District

The firm’s client submitted the low bid for a multi-school modernization and technology upgrade project, but was protested by the second low bidder which had been higher by only a few thousand dollars on bid day. The protester alleged the low bid offered to install unapproved and unequal products in violation of the bid documents. The firm responded to the protest and convinced the school district to reject the protest and award to the firm’s client.

Counsel: Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

T.B. Penick & Sons, Inc. v. Hardy Construction, Inc. Nevada, Clark County Superior Court Case No. A-12-655744-C

The firm successfully represented T.B. Penick & Sons, Inc., on its claim for payment on the Reunion Trails Project, a public work of improvement located in Henderson, Nevada. Upon completion of its work, the general contractor failed to pay the firm’s client citing difficulties in obtaining payment from the City of Henderson. The firm proceeded with a lawsuit against the general contractor and its payment bond. The firm also convinced the City to release the remaining construction funds to expedite final payment. Ultimately, the firm recovered the entire principal balance due the client totaling $463,451.65, plus payment of interest and attorney’s fees.

Counsel: David W. Smiley

SBA Office of Hearings and Appeals (“OHA”) – Appeal of Size Determination

The firm successfully represented the client before the Small Business Administration’s Office of Hearings and Appeals in the appeal of an adverse SBA Size Determination. The SBA, through a Size Determination, held the firm’s client was not a small business due to affiliation with its 8(a) Mentor, alleging the firm’s client had violated the “3-2 Rule” and was economically dependent upon its Mentor. OHA considered the compelling factual evidence and legal argument made by the firm and reversed the SBA’s Size Determination, holding the firm’s client is a small business under the applicable NAICS code. This victory allows the firm’s client to pursue small business set aside contracts, which it would otherwise have been precluded from pursuing had the Size Determination remained in place.

Counsel: David S. Demian

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Coverage Counsel On Large Construction Defect Claim

The firm represented a curtain wall contractor as corporate and coverage counsel in a claim by a public owner. The firm negotiated with the owner and with the client’s carriers over hotly contested liability and coverage issues resulting in settlement of the claims against the firm’s client with no out-of-pocket payment by the client and reimbursement to the client of the firm’s post-insurance-tender defense costs.

Counsel: Louis J. Blum and David W. Smiley

Arbitration Of Federal Miller Act Claim

The Firm represented the retaining wall subcontractor in a Miller Act payment bond claim against the general contractor. The subcontractor and general contractor agreed to arbitration. After the arbitration hearing, the Firm’s client was awarded its full claim plus attorneys’ fees.

Counsel: Louis J. Blum

Representation Of Plaintiff In Construction Defect Trial

The firm represented plaintiff commercial building owner in a dispute regarding damage to plaintiff’s office building in Orange County. The firm sued the prime contractor, grading contractor, retaining wall contractor, and others for construction defects relating to soils settlement. The defendants alleged they did not cause the damage. A five day jury trial resulted in a verdict in favor of the firm’s client. A settlement was reached after the firm succeeded in defeating defendant’s post-trial motions for a new trial and for judgment notwithstanding the verdict.

Counsel: Louis J. Blum

In re: University of California Los Angeles Westwood Replacement Hospital Cases

The firm represented the mechanical subcontractor in claims arising from the University of California’s construction of the Westwood Replacement Hospital. The litigation involved the owner, prime contractor and over 20 various subcontractors and lower tier subcontractors, and included claims by all parties in excess of $100,000,000. After multiple days of mediation, the firm’s client was paid over $25 million-the largest settlement payment to any of the subcontractors.

Counsel: Jason R. Thornton

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.

Counsel: Jeffrey B. Baird and Jon F. Gauthier

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.

Counsel: P. Randolph Finch Jr., Jason R. Thornton and Allison N. Lantz

JBH Structural Concrete, Inc. v. Cleanline Concrete, Inc., et al. San Diego Superior Court Case No. 37-2010-00084120-CU-BC-CTL

The firm represented the structural concrete prime trade contractor in litigation arising from the construction of the expansion to the Larry D. Smith correctional facility. The firm initiated litigation against the place-and-finish subcontractor and the concrete supplier as a result of defective wall panels that had been constructed. The firm’s client alleged the wall panels were defective as a result of a combination of improper finishing and an incorrect concrete mix design. The case settled prior to trial for payment to the firm’s client.

Counsel: Jason R. Thornton

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: David S. Demian and Christopher R. Sillari

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Federal Miller Act Claim For Inefficiency And Extra Work On Border Fence Construction

The Firm represented the plaintiff in a dispute regarding payment for extra work performed as a subcontractor on three U.S.-Mexico border fence projects for Kiewit, the general contractor. During the course of litigation, Kiewit moved for summary judgment on the grounds Foundation Fence’s claims were subject to a mandatory pass-through and liquidation provision in the subcontract. To defeat the motion, the Firm successfully argued the pass-through and liquidation provision was an unenforceable waiver of Miller Act payment bond rights. The parties reached a negotiated settlement after the Firm defeated the motion.

Counsel: Louis J. Blum

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

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.
Counsel: P. Randolph Finch Jr. and David S. Demian

Echo Pacific Construction, Inc. v. Prism Designs & Services, Inc. San Diego Superior Court Case No. 37-2010-00052793-CU-PA-NC

The dispute involved installation of casework at a local school district. After terminating the casework subcontractor, the subcontractor sought $61,650.00 plus attorneys’ fees for alleged project acceleration and nonpayment. The firm represented the general contractor and was successful in compelling the claim to arbitration. Prior to arbitration, the firm successfully negotiated a settlement agreement with no liability or amount owed by the firm’s client.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

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.

Counsel: Jeffrey B. Baird, David W. Smiley, and Christopher R. Sillari

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Allison N. Lantz

Engineered Structures of San Diego, Inc., dba Cairo Construction Company v. CH2M Hill Constructors, Inc. et al. San Diego Superior Court Case No. 37-2008-00057648-CU-8C-NC

The firm represented a subcontractor in litigation arising from the construction of a large wastewater treatment plant in North San Diego County. The firm initiated a lawsuit on behalf of the subcontractor against the design-build-operate contractor who had not paid the subcontractor in full for contract work performed. The subcontractor also sought damages for disruption to its work, resulting in labor inefficiency, and for change order work for which it had not been paid. The design-build-operate contractor disputed the subcontractor's claim and asserted a cross-complaint in the lawsuit against the subcontractor seeking affirmative relief. After a two-week jury trial, the jury returned a verdict in favor of the firm's client in the amount of $443,884.26. The firm's client then asserted post-verdict claims for interest, costs, and attorneys' fees, and was paid $750,000.00.

Counsel: Jason R. Thornton

Represent Plaintiff City Of Indian Wells In Large Construction Defect Claim

The Firm initiated a multi-party construction defect action on behalf of the City of Indian Wells as owner of a multi-unit affordable senior housing complex. The Firm sued the prime grading contractor, prime building contractor, their performance bond sureties, the architect, soils engineer, and others for damages for construction defects relating to soils settlement. The defendants each alleged they did not cause the damage, the deeper soils issues were the cause of settlement, and that the City’s damages were not as extensive as claimed. The Firm defeated a motion for summary judgment by the prime grading contractor’s performance bond surety contending the damages and claim occurred in excess of one year from completion. After more than a year of litigation, the Firm recovered $9,129,725.00 for its client via settlement.

Counsel: Louis J. Blum

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

C & L Coatings, Inc. v. Apex Development, Inc. et al. Court of Appeal of the State of California, 2nd Dist. Case No. B215701

The firm represented a contractor against a defaulting subcontractor for breach of contract and indemnity relating to its work on a public work of improvement. During the project the contractor obtained the consent of the public agency to substitute its listed subcontractor with another subcontractor. At the end of the project the replacement subcontractor’s supplier sued the subcontractor and the contractor’s payment bond. In the action initiated by the firm against the subcontractor for breach of contract and express indemnity, the subcontractor moved for summary judgment arguing that its contract with the contractor was void because the public agency failed to give the original subcontractor notice of the substitution and an opportunity for a substitution hearing. The trial court granted the motion for summary judgment and the firm appealed the decision to the California Court of Appeal on petition for writ of mandate. The Court of Appeal agreed with the firm that the contract was valid because the failure to comply with the notice and hearing requirements of the Public Contract Code was not caused by the contractor who obtained public entity consent. Accordingly, it reversed the summary judgment order and allowed the contractor to proceed to trial on its breach of contract and express indemnity claims against the defaulting subcontractor.

Counsel: Jason R. Thornton and David W. Smiley

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Johnson, Barnes & Finch, Inc. v. Meier Pacific, Inc. et al. San Diego Superior Court Case No. GIC881652

Numerous subcontractors initiated litigation against the firm’s general contractor client and the project owner to collect subcontract balances. The firm’s client asserted the pass through claims for unpaid contract balance and for additional overhead to build the project, which was completed over one year behind schedule. The project owner countered with a delay claim and other claims. Through a series of negotiations, settlement conferences, and mediation just prior to a jury trial, the firm’s client was paid on its claim for additional compensation, and received full indemnity from the owner for all subcontractor suits.

Counsel: Nowell A. Lantz

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Allison N. Lantz

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Dispute Over Pricing Incomplete Plans (Jury Trial)

The Firm represented General Contractor in litigation contesting the Owner’s termination of General Contractor for cause based on Owner’s contention the General Contractor refused to perform the work for the agreed Guaranteed Maximum Price. General Contractor and Owner had entered a GMP contract based on incomplete design documents. The contract provided General Contractor would re-price the work when design documents were complete. Development of the design increased construction costs significantly, but Owner refused to approve any increase to the GMP unless General Contractor “proved” the work was extra over what was shown in the contract documents. Owner terminated General Contractor. The case was tried to a jury which determined the Owner breached the contract. General Contractor recovered for work performed and obtained a declaration that the termination was wrongful.

Counsel: Louis J. Blum

Oakwood Remodeling & Construction, Inc. v. Symmetry Cabinet Company American Arbitration Association Case No. 73 110 E 00472 04 CHPA

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 subcontractor opponent.

Counsel: Jeffrey B. Baird

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.

Counsel: P. Randolph Finch Jr.

Judgment For Subcontractor In Claim For Extra Work Against General Contractor

The Firm tried a seven day bench trial regarding private work of improvement resulting in judgment in favor of the Firm’s subcontractor client on complaint, and zero recovery on cross-complaint by general contractor opponent.

Counsel: Jeffrey B. Baird and Louis J. Blum

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Settlement Of Federal Termination For Convenience

The firm’s client was terminated for convenience on a Federal project. The firm assisted the client in preparing a termination settlement proposal. Ultimately, the firm negotiated a settlement of the client’s claim against the Air Force on the terms favorable to the client.

Counsel: Jason R. Thornton

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Settlement Of Wrongful Termination Of Retaining Wall Subcontractor

The firm represented a retaining wall subcontractor in a dispute over wrongful termination of the subcontractor’s contract. Subcontractor sought payment for work performed. The grading contractor defendant claimed completion costs. Before any litigation was required, the firm negotiated a settlement resulting in a substantial payment to the firm’s client.

Counsel: Louis J. Blum

Labor & Employment
Law

Defense Of Employment Disability Discrimination Lawsuit

The firm defended an international manufacturer of environmental and construction specialty products in an employment discrimination lawsuit filed by a former employee. The employee brought claims for disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and wrongful termination under the California Fair Employment and Housing Act (“FEHA”). He alleged he was fired due to back and neck injuries he sustained in an automobile accident even though he was able to perform his job with reasonable accommodations. The firm removed the case to federal court and discovered the employee was simultaneously pursuing a separate personal injury lawsuit alleging he was so injured he could no longer work. The firm went on the offensive, aggressively arguing malicious prosecution. The employee sought over $300,000 in lost wages, punitive damages, and attorneys’ fees. In the end, the firm successfully negotiated a settlement for a tiny fraction of the amount demanded by the employee, saving the client valuable costs and time.

Counsel: Chad T. Wishchuk and Kathleen A. Donahue

Complete Defense Of Labor Code Section 98 Wage Claims At A California Labor Commissioner “Berman Hearing” State Case Number 10-88772EA

The firm represented TXL, Inc., an oil change business with operations in Brawley, California. The plaintiff, an oil change technician, alleged overtime, meal and rest break, and related claims, including for liquidated damages under Labor Code section 1194.2, waiting time penalties, and interest. A hearing was held before the Labor Commissioner. The Labor Commissioner ruled in favor of TXL on every single claim, ordering that the plaintiff take nothing. A copy of the Order, Decision Or Award Of The Labor Commissioner can be found at this link.

Counsel: Chad T. Wishchuk

Complete Defense Of A Prevailing Wage Forfeiture Action

The firm represented a general contractor and its bonding company on a public works school project in Southern California. The labor compliance program of the school district alleged that a subcontractor on the project willfully violated the California Prevailing Wage Law, by misclassification, under-reporting, and underpayment of prevailing wages and overtime. A notice of withholding of contract payments was issued against the general contractor and subcontractor for nearly a quarter of a million dollars. The firm asserted the innocent general contract “safe harbor” defense under the California Labor Code, as well as a statute of limitations defense under Labor Code section 1741. Following our pre-hearing motion to the California Director of Industrial Relations, the entire case was withdrawn and dismissed, resulting in zero dollars of liability for our client and surety.

Counsel: Chad T. Wishchuk

Complete Defense Of OSHA Citation

The firm’s client, an electrical contractor on a commercial hotel renovation project, was cited by OSHA for an alleged failure to properly deenergize and label circuits in an electrical panel. The firm successfully argued that the citation was improper, including because the circuits in questions were not known to the electrical contractor because they did not appear in contract drawings or specifications and were under the exclusive control of the project owner. As a result of the firm’s arguments, OSHA vacated the citation following an early informal conference, with no penalties assessed against the firm’s client.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

The Firm Prevented A Former Corporate Officer Of A Client From Misappropriating Trade Secrets And Other Proprietary Business Information

The firm represented a company against the company’s former high-ranking officer and other former employees who resigned abruptly to form a competing business. These former employees used removable hard drives, flash drives, and jump drives to copy sensitive company information and customer lists in violation of the law and non-solicitation and non-compete obligations. The firm filed a lawsuit alleging information theft, trade secret misappropriation, breach of the duties of loyalty and confidentiality, and related claims. With an aggressive and fast-moving litigation strategy, including the use of forensic computer experts who analyzed and imaged thousands of computer files and devices, the firm uncovered the full extent of the corporate espionage and brought it to an end. Ultimately, the firm obtained a court order requiring a complete inventory of all stolen documents and computer files, and forced the former employees to destroy all their ill-gotten computer equipment and files. In the process, the firm successfully defended our client against a counterclaim for unfair business practices.

Counsel: Chad T. Wishchuk and Daniel P. Scholz

Complete Defense Of Prevailing Wage Claim Relating To Travel Time

The California Labor Commissioner issued a Civil Wage And Penalty Assessment (“CWPA”) against the firm’s client for alleged unpaid travel and subsistence amounts in connection with work on a school project in San Bernardino, California. The potential liability under the CWPA was over $108,000.00, including liquidated damages. In response to the CWPA, our firm immediately initiated the administrative appeal process under California’s Prevailing Wage Law by filing a request for review hearing and a demand for the Labor Commissioner’s investigatory file. We uncovered mistake after mistake by the Labor Commissioner’s investigation, rendering the CWPA inaccurate. We convinced the Labor Commissioner that our client had complied with the law in all respects. As a result, the Labor Commissioner fully released our client – and the entire CWPA – at the earliest stage in the case, without requiring our client to pay anything, and before our client was required to go to a Department of Industrial Relations hearing.

Counsel: Chad T. Wishchuk

Defense of Employee Discrimination Claim

The firm defended a contractor in an employment discrimination lawsuit filed by a former employee. The lawsuit alleged disability discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination, and the failure to pay prevailing wages. The former employee sought over $250,000 in alleged lost wages, plus punitive damages and attorneys’ fees. The firm removed the case to federal court and convinced the judge to dismiss the punitive damages claims. Prior to significant discovery, the firm was able to negotiate a settlement for a small fraction of the amount initially demanded. This saved the firm’s client valuable time and expense that can now be better used productively in growing the contractor’s business.

Counsel: Chad T. Wishchuk and Daniel P. Scholz

Wage and Hour Class Action v. Contractor

The firm defended a contractor against a class action lawsuit based on alleged violations of wage and hour and prevailing wage laws. The lawsuit was brought on behalf of over 400 current and former employees. An object of the litigation was to force the contractor to sign a union contract. The lawsuit sought over $5 million in damages plus attorneys’ fees and Labor Code penalties. The firm successfully removed the lawsuit from state court to federal court, limited initial discovery, and successfully defended the plaintiffs’ attempts to remand the lawsuit to state court. To avoid costly depositions, a class certification motion, other discovery, and trial, the firm participated early in conferences with a federal magistrate judge. By addressing the issues and claims early in the litigation, the firm successfully defended the contractor from labor organization efforts and obtained a settlement agreement from plaintiffs including full releases of all claims for the prior four years. The firm provided an efficient and quick resolution of the complex matter, saving the client time and money.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

Complete Defense Of Cal/OSHA Citations In A Fatal Workplace Accident

The firm represented a general contractor that received multiple Cal/OSHA citations following a fatal on-the-job accident. From the very outset of the Cal/OSHA investigation on the day of the accident, through to the pre-trial period, the firm defended and counseled the contractor successfully. In the end, based on the evidence and legal arguments developed and presented by the firm, Cal/OSHA dismissed each of the citations in their entirety and dropped the case without a single penny of penalties to the contractor or any negative mark on the contractor’s Cal/OSHA history.

Counsel: Chad T. Wishchuk

Defense Of Employment Discrimination Lawsuit

The firm defended a contractor in an employment discrimination lawsuit filed by a former employee who had been laid off as part of a reduction in force. The plaintiff alleged age discrimination, disability discrimination, violations of the federal and state medical leave laws, retaliation, and intentional infliction of emotional distress. He sought over $350,000 in lost wages, plus emotional distress damages, punitive damages and attorneys’ fees. To gain an early strategic advantage, the firm successfully removed the lawsuit from state to federal court, where we then convinced the federal judge to dismiss two significant portions of the lawsuit, including the claims for emotional distress and punitive damages. We then obtained significant admissions from the plaintiff in a heated deposition, which forced him to reduce his demand. The case settled after an early neutral evaluation with the judge, saving the contractor valuable time and tens of thousands of dollars in potential damages and attorneys’ fees.

Counsel: Chad T. Wishchuk

California Workers’ Compensation Appeals Board Serious and Willful Misconduct Case

The firm represented a lath, plaster and drywall subcontractor whose employee suffered serious injuries in an on-site hose whipping accident. The employee alleged the incident was the result of the subcontractor’s serious and willful misconduct, including by not properly locking out/tagging out the hose. He sought more than $250,000 in damages. The firm defended the subcontractor at trial, ultimately obtaining a favorable settlement for a fraction of the original amount claimed.

Counsel: Chad T. Wishchuk

Defense Of Civil Wage And Penalty Assessment By The California Labor Commissioner (DLSE)

The firm’s subcontractor client was served with a massive Civil Wage and Penalty Assessment by the California DLSE relating to its work on various public works projects. The assessment included potential liability of over $150,000, including unpaid prevailing wages, substantial Labor Code penalties, liquidated damages and interest. Fourteen workers were audited and claimed to be misclassified and unpaid or underpaid. The firm defended the subcontractor at an administrative hearing before the California Department of Industrial Relations. Based on the firm’s procedural motions and cross-examination of several of the workers, the DLSE dropped the majority of the assessment and settled the matter favorably for the subcontractor.

Counsel: Chad T. Wishchuk

Early And Efficient Dismissal Of Case Involving Independent Contractors

The firm represented a company in a case by independent contractors. The independent contractors alleged such things as breach of contract, tortious interference with prospective economic advantage, and defamation. At the very beginning of the case, the firm attacked the lawsuit for various legal insufficiencies, and the court agreed, dismissing the case against the firm’s client and ending the lawsuit at the earliest stage possible.

Counsel: Chad T. Wishchuk

Urbas v. ASM Affiliates, Inc., California Department of Industrial Relations, Division of Labor Standards Enforcement Case No. 17-56404 DB

The firm victoriously defended this client in an administrative wage and hour proceeding before the California Labor Commissioner. A former employee filed a complaint alleging that she was not timely paid her final wages at termination. She sought substantial “waiting time penalties” under California Labor Code section 203. The firm represented the client in a hearing before a Labor Commissioner hearing officer, successfully arguing that waiting time penalties were not available because there was a good faith dispute as to whether the employee was owed any wages at the time of her termination. The Labor Commissioner ruled in favor of the firm’s client, awarded the employee nothing, and dismissed the case in its entirety.

Counsel: Chad T. Wishchuk

New Dimension Masonry, Inc. DAS Complaint #2009-0778

In an administrative proceeding before the California Department Of Industrial Relations, the Division of Apprenticeship Standards (DAS) cited the firm’s client for an alleged failure to comply with the apprenticeship requirements of California’s Prevailing Wage Law at Labor Code section 1777.5 and the California Code of Regulations section 203.1. The firm quickly convinced the DAS that the complainant, a union watchdog-type group, was wrong in its use of the law relating to approved apprenticeship programs and apprentice dispatch requests. The DAS dismissed the complaint before a hearing was necessary. In short order, the firm’s client was paid in full its project funds which had been withheld due to the apprenticeship complaint.

Counsel: Chad T. Wishchuk

Erickson-Hall Construction Company v. San Diego Unified School District and Graham Champion San Diego Superior Court Case No. 37-2008-00087501-CU-WM-CTL

The firm recovered over $1 million on behalf of its general contractor client against the school district and its labor compliance program. In this first of its kind lawsuit, the firm asserted civil rights and other claims against the labor compliance program which was withholding contract funds far in excess of that justified by the California Prevailing Wage Law. The case settled, and in addition to the large recovery, the firm's client was paid its attorneys' fees.

Counsel: Chad T. Wishchuk

Federal Procurement & Claims
Law

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.

Counsel: David S. Demian and Christopher R. Sillari

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.

Counsel: David S. Demian and Christopher R. Sillari

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.

Counsel: David S. Demian and Christopher R. Sillari

SBA Office of Hearings and Appeals (“OHA”) – Appeal of Size Determination

The firm successfully represented the client before the Small Business Administration’s Office of Hearings and Appeals in the appeal of an adverse SBA Size Determination. The SBA, through a Size Determination, held the firm’s client was not a small business due to affiliation with its 8(a) Mentor, alleging the firm’s client had violated the “3-2 Rule” and was economically dependent upon its Mentor. OHA considered the compelling factual evidence and legal argument made by the firm and reversed the SBA’s Size Determination, holding the firm’s client is a small business under the applicable NAICS code. This victory allows the firm’s client to pursue small business set aside contracts, which it would otherwise have been precluded from pursuing had the Size Determination remained in place.

Counsel: David S. Demian

Bid Protest – Army Corps of Engineers

The firm represented a large prime contractor specializing in Federal work in a bid protest against the Army Corps. of Engineers. The protest, on a proposal for $500 million worth of work on various Federal Installations, was based on the Army Corps’ improper rejection of a submittal in violation of its own specifications and applicable law. The firm prepared a bid protest and provided supporting cases and analysis to support the bid protest and discussions, ultimately resulting in the acceptance of the contractor’s submittal.

Counsel: David S. Demian and Nowell A. Lantz

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.

Counsel: Jeffrey B. Baird and Christopher R. Sillari

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a $30,000,000 firm-fixed-price indefinite-delivery/indefinite-quantity contract before the Government Accountability Office ("GAO") for construction and repair services for facilities and structures at Fort Leavenworth, Kansas. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm's client was awarded the $30,000,000 contract.

Counsel: David S. Demian

Acquisition Of SBA Small Business Federal Construction Contractor

Structured and negotiated acquisition of SBA small business federal construction company, including related debt financing, security agreements, and federal approvals for transition of existing federal contracts to the firm's client.

Counsel: David S. Demian

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a GSA IDIQ contract for construction and related services. The solicitation provided for the award of multiple contracts to offerors for performance of work in multiple tiers and geographic zones. The GSA determined not to award a contract to the firm's client. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm's client was awarded the contract.

Counsel: David S. Demian

Small Business Administration ("SBA") Size Protest

The firm advised its client as to the structuring of an 8(a) joint venture to pursue an 8(a) sole source set aside project for the United States Department of Air Force. The award was protested to the SBA by an unsuccessful offeror. The firm defended the award on behalf of its client and the protesting party voluntarily withdrew its protest.

Counsel: David S. Demian

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a United States Department of Air Force $45,000,000 Indefinite Delivery, Indefinite Quantity (IDIQ), SABER, construction contract. Following submission of the firm's protest the Contracting Agency filed a motion to dismiss with GAO which was unsuccessful. The parties participated in outcome prediction ADR, after which the Contracting Agency took corrective action. Following the re-evaluation of proposals, the firm's client was awarded the $45,000,000 contract.

Counsel: David S. Demian

Business & Commercial Litigation
Law

Insurance Company - Collections/Judgment Enforcement

​​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

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.

Counsel: P. Randolph Finch Jr. and Louis J. Blum

Claim of Copyright Infringement

The firm's construction client was sued for violation of copyright over the use of images on its website. The firm tendered to the client's liability insurance carriers and negotiated with the carrier for settlement of the claim at no expense to the client.

Counsel: Louis J. Blum

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

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.

Counsel: P. Randolph Finch Jr., Jeffrey B. Baird and Daniel P. Scholz

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

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.

Counsel: P. Randolph Finch Jr. and Andrea L. Petray

Negotiation With Workers’ Compensation Carrier

After a workers’ compensation audit, the firm’s client was charged additional premiums of more than two times the original premium. The firm’s client objected that the carrier had failed to update monthly premiums as requested by the client. Because of budget constraints, the client requested to pay the additional premium in installments. The carrier refused until the firm filed suit on the client’s behalf. After suit was filed, the carrier agreed to accept payment for the additional premium in installments acceptable to the client. The client ultimately was not required to pay the premium off until more than two years after the audit.

Counsel: Louis J. Blum

Fraudulent Solicitation Of Investment In Construction Business (Jury Trial)

The Firm represented General Contractor against a former business partner who fraudulently induced General Contractor’s investment in and eventual purchase of a construction manufacturing business. A jury trial resulted in a $7.3 million dollar judgment in favor of the Firm’s client.

Counsel: Louis J. Blum

Defense Of Claims For Breach Of Commercial Lease, Conversion, And Alter Ego

The Firm represented defendant general contractor, its president, and affiliated entities in an action for breach of lease, property damage, alter ego and related claims. The plaintiff asserted damages in excess of $4 million. The Firm secured insurance coverage for the defendants and after a one-day mediation, the matter settled for a nominal payment by defendants.

Counsel: Louis J. Blum

Bond v. Salem, et al. San Diego Superior Court Case No. 37-2012-00096990-CU-CL-CTL

The firm successfully defended a client against a fraudulent transfer action relating to a property transfer made in 2003. The firm demurred to the plaintiff’s complaint, arguing the complaint was time-barred by the seven-year limitations period of Civil Code section 3439.09, subdivision (c). Before filing the demurrer, the firm served plaintiff with a 128.7 motion for sanctions warning that the fraudulent transfer claim was time-barred by Section 3439.09, subdivision (c), and therefore, legally frivolous. Plaintiff refused to dismiss his complaint and forced the firm to file the 128.7 motion for sanctions. The court sustained the demurrer and dismissed the complaint, with prejudice, and granted the 128.7 motion for sanctions.

Counsel: David S. Demian

Defense of Conversion Claim By Neighboring Property Owner

After a 12-day jury trial, the jury returned a 12-0 verdict in favor of the firm’s client, a subcontractor that had constructed various infrastructure improvements. The case involved a cross-complaint for conversion by a predecessor landowner. The prior owner claimed construction of a 12 acre retention basin, performed on neighboring property pursuant to contract resulted in conversion of approximately 75,000 cubic yards of dirt with a value in excess of $300,000.00. The trial resulted in a defense verdict with no recovery for the neighboring property owner. Finch Thornton & Baird’s client was also awarded its costs and expert fees.

Counsel: Allison N. Lantz

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.

Counsel: Jeffrey B. Baird and Christopher R. Sillari

Sprotte + Watson Architecture & Planning, Inc. v. Santee School District et al. San Diego Superior Court Case No. 37-2009-00083936-CU-CO-CTL

The dispute involved a nine school site construction project at a local school district, valued at over $100 million. After terminating the architect for convenience, the school district was sued for payment owed, lost profits, and bad faith termination. The architect also sued the former assistant superintendent personally for intentional interference with its contract. The matter culminated in a three and a half week jury trial in which the firm represented the local school district and was successful in excluding the claims for lost profits and bad faith termination, and the allegations against the individual district employee, totaling approximately $1.3 million. The firm also secured a jury verdict for damages against the negligent architect, and partially defended the claims for outstanding payments.

Counsel: Nowell A. Lantz and Daniel P. Scholz

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.

Counsel: Jeffrey B. Baird and Christopher R. Sillari

Defense Verdict On Interference With Contract Claim

The Firm tried an eight day bench trial on its complaint against client seeking $90 million, plus punitive damages, resulting in complete defense judgment in favor of the Firm’s contractor client. Plaintiff’s last pre-trial offer was to accept payment of $15 million.

Counsel: Louis J. Blum

First Class Water and Shower v. B. L. Murphy, dba B. L. Murphy & Sons San Diego Superior Court Case No. GIC840592

Two week jury trial regarding breach of contract and conversion resulting in 10-2 verdict in favor of firm's client on plaintiff's complaint and 12-0 verdict in favor of firm's client on its cross-complaint.

Counsel: David W. Smiley

Business & Commercial Transactions
Law

Corporate Structuring, Planning And Protection Of Intellectual Property Of Premium Organic Juice Manufacturer In U.S. And International Markets

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 20 products in the U.S., Canada and the 27 countries comprising the European Union.

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

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.

Counsel: P. Randolph Finch Jr., David S. Demian, and Adam C. Witt

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.

Counsel: P. Randolph Finch Jr. and David S. Demian

Expansion Of International Bar And Club Brand Into United States

Negotiated and structured alliance of client's international business with United States venture capitalists to expand operations into the United States, including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

Counsel: David S. Demian

Acquisition Of SBA Small Business Federal Construction Contractor

Structured and negotiated acquisition of SBA small business federal construction company, including related debt financing, security agreements, and federal approvals for transition of existing federal contracts to the firm's client.

Counsel: David S. Demian

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.

Counsel: P. Randolph Finch Jr. and David S. Demian

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.

Counsel: P. Randolph Finch Jr., David S. Demian, and Allison N. Cooper

Government & Regulatory
Law

SBA Office of Hearings and Appeals (“OHA”) – Appeal of Size Determination

The firm successfully represented the client before the Small Business Administration’s Office of Hearings and Appeals in the appeal of an adverse SBA Size Determination. The SBA, through a Size Determination, held the firm’s client was not a small business due to affiliation with its 8(a) Mentor, alleging the firm’s client had violated the “3-2 Rule” and was economically dependent upon its Mentor. OHA considered the compelling factual evidence and legal argument made by the firm and reversed the SBA’s Size Determination, holding the firm’s client is a small business under the applicable NAICS code. This victory allows the firm’s client to pursue small business set aside contracts, which it would otherwise have been precluded from pursuing had the Size Determination remained in place.

Counsel: David S. Demian

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.

Counsel: P. Randolph Finch Jr. and David S. Demian

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.

Counsel: P. Randolph Finch Jr., David S. Demian, and Allison N. Cooper

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.

Counsel: P. Randolph Finch Jr., David S. Demian, and Allison N. Cooper

Liability Defense
Law

Hotel Guest v. Hotel

The firm represented a defendant contractor, who performed renovation work at a hotel. A guest of the hotel allegedly tripped and fell over a door threshold. The guest sued the hotel for premises liability. The hotel cross-complained against the firm's client for indemnity. The firm took the hotel guest's video deposition at the site of the alleged trip and fall. At the deposition, the guest admitted that no construction work was being performed at the location of the incident. After the deposition, the matter quickly settled for a nominal payment by the hotel and contractor.

Counsel: David W. Smiley

Zurich Specialties London Limited v. A&D Fire Protection, et al. San Diego Superior Court Case No. 37-2013-00048004-CU-BC-CTL

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.”

Counsel: David W. Smiley, M. Katy Ross, and Kelly A. Floyd

Antonio Lopez v. Sundt Construction, Inc. United States District Court Case No. 13-CV-02734 W NLS

The firm’s client was sued by an employee of a subcontractor for a workplace injury. After proving that the claim was barred by worker’s compensation, the firm was able to obtain a dismissal of its client, with prejudice, in exchange for a waiver of costs.

Counsel: David W. Smiley

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.

Counsel: P. Randolph Finch Jr. and David W. Smiley

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.

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and David W. Smiley

United States of America, for the use and benefit of YMC, Inc. v. Insurance Company Of The West, et al USDC Southern District California Case No. 11MC0263

The firm’s surety client’s funds were frozen by a writ of execution served on the surety’s bank account after its principal paid the judgment. In less than a week, the firm was able to obtain a federal court order releasing the client’s accounts from the writ with the costs paid for by the principal on the bond.

Counsel: David W. Smiley

Ingeborg Hogue v. West Coast Air Conditioning San Diego Superior Court Case No. 37-2011-00084491-CU-AS-CTL

An asbestos claim was filed against the firm’s general contractor client by a former employee of a public school district, whom the general contractor performed modernization work for in the 1990s. Following an aggressive investigation into the project, and after confronting the plaintiff with conclusive evidence that the client performed no asbestos related work, the firm was able to obtain a pre-answer dismissal of the plaintiff’s complaint with no payment by the firm’s client.

Counsel: David W. Smiley

Insurance Coverage
Law

Rafael Gonzalez v. Hensel Phelps Construction Co. San Diego Superior Court Case No. 37-2012-00084464-CU-PO-CTL

The firm’s client was sued for indemnity in connection with a personal injury lawsuit filed by one of its employees. The client’s insurance company initially denied coverage. The firm successfully convinced the client’s insurer that its coverage denial was in error. As a result, the carrier provided defense and a settlement was reached that was fully funded by the insurer.

Counsel: David W. Smiley

Coverage Counsel On Large Construction Defect Claim

The firm represented a curtain wall contractor as corporate and coverage counsel in a claim by a public owner. The firm negotiated with the owner and with the client’s carriers over hotly contested liability and coverage issues resulting in settlement of the claims against the firm’s client with no out-of-pocket payment by the client and reimbursement to the client of the firm’s post-insurance-tender defense costs.

Counsel: Louis J. Blum and David W. Smiley

Property Owner v. Title Insurer

The firm represented plaintiff homeowners who obtained a policy of title insurance from the defendant. The plaintiffs had previously been sued by the owner of an adjacent property who alleged that an abandoned trail which traversed plaintiffs’ property was in fact a public right of way. The firm sued the insurer for breach of contract and insurance bad faith after the insurer refused to defend the plaintiffs in response to the adjacent owner’s lawsuit. After the firm defeated the insurer’s motion for summary judgment, and shortly before a jury trial with punitive damages at risk, the parties reached a confidential settlement.

Counsel: Louis J. Blum

Roel Construction Company, Inc. v. Alcala Co. et al. San Diego Superior Court Case No. 37-2007-00052066-CU-CD-CTL

The firm recovered over $1.5 million on behalf of its general contractor client and its insurers against numerous subcontractors and their insurers in a subrogation matter involving a pedestrian bridge collapse. The underlying claim was settled during a pre-litigation ADR process and the firm was nominated lead trial counsel for the client and the developer’s insurance carriers in the subsequent subrogation action against the subcontractors and their insurers. In the subrogation action, one of the insurers for a subcontractor filed a motion for summary judgment regarding its duty to defend the client as an additional insured in the underlying ADR proceeding. It was the insurer’s position that it had no duty to defend the client because no complaint was ever filed in the underlying claim. Prior to the hearing on the motion, the firm reached a settlement with the insurer for $1 million plus an additional $388,000.00 (representing reimbursement of defense fees in the underlying ADR proceeding) contingent on the firm beating the insurer’s motion for summary judgment. The firm prevailed against the motion, resulting in payment of the $388,000.00 to the client and its carriers, including reimbursement of the client’s out of pocket deductible expenses.

Counsel: David W. Smiley

Casoleil LP v. Wermers, Inc. et al. San Diego Superior Court Case No. GIC862625

This case involved a multiparty construction defect action with claims by the owner in excess of $34 million. In the action, the firm’s client faced claims in excess of $5 million and insurance coverage was vigorously disputed by the client’s general liability carriers. The firm was able to obtain a favorable settlement within policy limits, including payment of the client’s defense fees and costs by the insurers.

Counsel: P. Randolph Finch, Jr. and David W. Smiley

Real Estate
Law

Private Golf Club v. Directors of an HOA

The firm’s three clients were sued by a private golf club for breach of fiduciary duty, interference with prospective economic advantage and intentional interference with contract, based on their roles as Directors of a Homeowners Association in a multi-million dollar Rancho Santa Fe neighborhood. After completion of significant discovery and attack on the claims against its clients, and at the sole expense of the Board’s Directors and Officers insurer, the firm prevailed on a motion for summary judgment as to all claims against one of its three clients. Dismissals of all claims against the other two firm clients followed immediately thereafter, as did the bankruptcy filing of the golf club.

Counsel: P. Randolph Finch Jr. and Nowell A. Lantz

Quiet Title Re Commercial Property

The firm identified a significant cloud on title to valuable real property owned by its client in the City of San Diego. The cloud on title was the result of an unrecorded 1996 quitclaim deed which conveyed full ownership of the property to the client. The original deed was lost and two of the three signers of the original were dead by the time the error was discovered. Thus, record title to the property continued to reflect a divided, 50/50 ownership between the firm’s client and another corporate entity that by the time of discovery was a reorganized debtor in bankruptcy proceedings. The reorganized debtor claimed it continued to own a valuable 50 percent interest in the property. The firm prepared a lawsuit and negotiated a settlement with the bankruptcy estate which resolved the title dispute for a fraction of the property’s value. The firm's client is now the 100 percent fee simple owner of the property.

Counsel: P. Randolph Finch Jr and Jason R. Thornton

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.

Counsel: P. Randolph Finch Jr. and David W. Smiley

Representation Of Plaintiff Property Owner In Claim For Property Damage From Altered Runoff

The Firm represented plaintiff homeowners whose property became inundated with muddy runoff from an adjacent construction project. The Firm sued the developers of the adjacent property for trespass and nuisance on the theory that construction of a luxury housing development permanently altered the natural pattern of surface water drainage onto plaintiffs’ property. The runoff resulted in pollution of plaintiffs’ pond and other property damage, as well as loss of enjoyment of the property. The developer filed a cross-complaint against the general contractor and subcontractors who performed work on the project. The parties reached a settlement which compensated plaintiffs for out-of-pocket repair costs, attorneys’ fees, past and future stress, and required the developer to install drainage improvements to prevent future unacceptable run-off problems.

Counsel: Louis J. Blum

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.

Counsel: Jeffrey B. Baird and Christopher R. Sillari

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.

Counsel: P. Randolph Finch Jr.

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.

Counsel: P. Randolph Finch Jr. and David S. Demian

Expansion Of International Bar And Club Brand Into United States

Negotiated and structured alliance of client's international business with United States venture capitalists to expand operations into the United States, including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

Counsel: David S. Demian

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.

Counsel: P. Randolph Finch Jr., David S. Demian, and Allison N. Cooper

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.

Counsel: P. Randolph Finch Jr. and David S. Demian

Blackinton Airport Property Owners Association v. Dino DeLuca et al. San Diego Superior Court Case No. GIN056722

The firm represented a homeowners association that sued to foreclose on a lien to collect delinquent assessments in the amount of $154,000.00. Defendant asserted a cross-claim for declaratory relief seeking to invalidate the homeowners association’s allocation of airport landing rights. After the second day of the client’s case-in-chief at trial, and testimony by sitting Justice MacDonald (who drafted the operating documents for the association), defendant agreed to pay the full amount of the lien plus $150,000.00 in attorneys’ fees and costs; and judgment validating the allocation of landing rights.

Counsel: Jason R. Thornton and Andrea L. Petray

Intellectual Property
Law

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.

Counsel: Christopher R. Sillari

Corporate Structuring, Planning And Protection Of Intellectual Property Of Premium Organic Juice Manufacturer In U.S. And International Markets

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 20 products in the U.S., Canada and the 27 countries comprising the European Union.

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

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.

Counsel: David S. Demian and Christopher R. Sillari

Expansion Of International Bar And Club Brand Into United States

Negotiated and structured alliance of client's international business with United States venture capitalists to expand operations into the United States, including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

Counsel: David S. Demian

Probate Litigation
Law

Caregiver/Fiduciary/Trust Administrator & Employment Litigation

The firm represented the beneficiary of a multi-million dollar irrevocable trust who was sued by a caregiver and fiduciary engaged by the trust to provide services to the beneficiary and trust, including home healthcare. The beneficiary was a chronically ill and disabled dependent adult. The caregiver sued the beneficiary and the trustee of the trust for breach of an alleged contract of employment for life, seeking wages and benefits, plus emotional distress damages, claiming he was the friend, mentor, life coach, real estate agent, banker and employee of both the beneficiary and the trust. The damages sought exceeded one million dollars. However, the caregiver had obtained a highly suspect power of attorney and numerous so-called “donative transfers” or “gifts,” including cash, jewelry, a car, trips and more, from the trust beneficiary, all despite the beneficiary’s lack of capacity. Early in the case, we successfully eliminated the caregiver’s claims against the beneficiary on the grounds the caregiver’s contractual relationship, if any, was with the trust, not the beneficiary. We then counter-sued for the rescission of the “gifts,” and financial abuse under California’s dependent adult and elder abuse protection statutes. We successfully litigated the matter to trial, at which time the caregiver – when faced with the likely dismissal of his claims plus the prospect of our substantial counterclaims – dismissed his claims in their entity. The client’s claims were favorably resolved.

Counsel: Chad T. Wishchuk

Defense of Former Co-Trustee from Claims by Beneficiary and Successor Co-Trustee

Defended former co-trustee from multi-million dollar claim for damages brought by beneficiary and successor trustee. Reached settlement at mediation for fraction of amount sought.

Counsel: Nowell A. Lantz

Appointment of Special Administrator/Claims Against Previous Trustee and Co-Beneficiary

Represented beneficiary in multi-stop litigation, including opening probate, appointment as special administrator and filing of petition to recover damages for numerous claims, including financial elder abuse and return of trust property. Resolved at mediation with firm’s client receiving favorable resolution.

Counsel: Nowell A. Lantz

Breach of Trust and Surcharge Petition Against Corporate Fiduciary

Petitioned for breach of trust, removal, and surcharge against a corporate trustee, succeeding in compelling a multi-million dollar distribution and resolving the dispute in a settlement favorable to the firm’s client.

Counsel: Nowell A. Lantz

Contested Petition for Construction of Trust

Successfully petitioned for a construction of the decedent’s trust which resulted in several millions of dollars passing to the firm’s client. Overcoming allegations that the trust language directed one-half of the trust residue pass to another beneficiary, the firm used extrinsic evidence to show the decedent’s true intent was that the entire trust residue pass to the firm’s client.

Counsel: Nowell A. Lantz

Will Contest

Initiated a contest of a purported holographic codicil and successfully negotiated a settlement resulting in the firm’s client receiving the full amount she was entitled to receive under the decedent’s formal will.

Counsel: Nowell A. Lantz