NEWS & PRESS RELEASES
After victory at trial, Berding|Weil partner Scott Barton successfully obtained a favorable decision from the Nevada Supreme Court in answer to defendant's post-trial appeals. This case went to trial against one non-settling defendant after Barton had already obtained settlements from other defendants in excess of $2,500,000 for construction defects in this 256 unit project located in Clark County, Nevada. The single non-settling subcontractor defendant offered less than $50,000 before trial in which significant liability was alleged against it. The jury returned a verdict against the subcontractor in excess of $1,000,000. The defendant appealed, and in April 2013 the Nevada Supreme Court affirmed the jury's verdict, and in addition directed the trial court to add an award of attorney's fees in favor of Mr. Barton's client.
The owners of a hotel in Solano County turned to Berding & Weil partner Scott Barton when the general contractor for their new hotel repeatedly refused to respond to their pleas for help with massive water intrusion and damage that was jeopardizing their investment. Two years after filing the case with ongoing and continuing damage, and with only nominal settlement offers from the defendants, partners Scott Barton and Chad Thomas brought the case to a Solano County jury. Following a six week trial in March and April of this year, the jury awarded $3,800,000 to Berding|Weil's clients, finding liability on the part of the general contractor and three subcontractors. The jury award represents nearly one-hundred percent of the damages claimed by on behalf of the owner.
On December 13, 2012, in a unanimous published opinion, the First District Court of Appeal reversed a trial court's order dismissing two architectural firms from a construction defect case brought by an association. The trial court had held that architects and design professionals had no duty of care to the eventual owners of the project or their association, whether under either common law or the SB 800 Right to Repair Act. Berding | Weil Partner Matt J. Malone represented the Executive Council of Homeowners as an amicus party on the appeal, urging reversal of the trial court's decision. ECHO argued that decades of common law supported the duty from a design professional to owners and associations and that the Right to Repair Act reinforced this long-standing principle. Further, denying such a duty would damage associations and owners across the state as they would, in the end, suffer the consequences of any design deficiencies. Accepting these arguments, the Court of Appeal confirmed the duty of care under both common law and the Right to Repair Act ensuring that owners and associations remain able to bring claims of negligent design against design professionals.
The case is Beacon Residential Community Association v. Skidmore, Owings & Merrill, LLP et al., ___ Cal. Rptr. ____, 2012 WL 6221728.
In January 2012, after four years of litigation without any offer of settlement, our clients, owners of a major luxury resort, got their first offer ($6.8 million) from the lead defendant. It was inadequate, rejected and the matter was prepared for trial.
On March 7, following jury selection and just before opening statements, the general contractor, twenty subcontractors, and design professionals found enough money--$19,648,000--to settle the case. Added to previous settlements the total settlement was $20.7 million.
The case required more than 20 visits to the client's site and review of over 1,000,000 documents. 100 depositions were taken, coast to coast. The depth of BerdingWeil, attorneys and legal assistants, made it possible to put an effective legal team on this case while also taking care of the dozens of other cases that our attorneys handle every day. No other plaintiff's construction defect firm in California has similar resources or our trial track record. We like to settle cases as early as we can, but sometimes it is necessary to be trial ready, with real trial experience to back that up, to make settlement happen.
Congratulations to Scott, Randy, and your entire team!
A co-ordinated and conscientious effort between Berding|Weil attorneys and counsel for the developers of the Silverwood condominiums has paid dividends for all involved. When the Silverwood Homeowners Association discovered that water intrusion at balconies, elevated walkways and other areas was causing significant damage, the Association retained Berding|Weil attorneys Scott Barton and Tim Smith to assist. Just twenty months after filing suit against the developers of Silverwood, the Association obtained a $2,085,000 settlement to allow it to make the repairs necessary to protect the investment of each of its members.
Berding|Weil attorneys Tyler Berding and Chad Thomas recently settled a construction defect lawsuit on behalf of the homeowners’ association for a 108-unit condominium development in San Jose, California. The Berding|Weil team, which included Legal Assistant Elizabeth Jahn, worked with the developer and its subcontractors through the mediation process to reach a settlement of $2,000,000. The proceeds of this settlement will enable the Association to conduct necessary repairs and cover its future maintenance obligations. Importantly, Berding | Weil achieved this settlement prior to committing the time and resources that would normally be consumed in conducting formal discovery and preparing for trial, which resulted in a greater net return to the association. Each case is unique, and the firm proved once again that it not only has the skill and resources to pursue its clients’ rights aggressively through the courts, but when appropriate, can also work cooperatively with developers and subcontractors to get efficient and effective results on behalf of its clients.
Womens Caucus wins, CJAC loses.
For the first time ever, the CAOC Womens Caucus held a fact- and fun-filled seminar the afternoon before Justice Day to educate interested members on the best practices in getting our justice-centered message across to statehouse lawmakers. Inside of 48 hours, one of those in attendance – Allison Andersen – demonstrated that our members are a quick study. She addressed the Senate Judiciary Committee on SB 603
, a "frivolous litigation" bill pitched by CAOC's most fervent nemesis in the Capitol, the Civil Justice Assn. of California. Andersen's compelling and well-crafted testimony helped do the trick. With relative dispatch, the committee booted CJAC's bill to the curb, reasoning that it was unnecessary because existing sanctions already serve as adequate deterrents for lawyers who might take on questionable cases of frequent-filing litigants. Currently, courts can label a litigant as vexatious only if they are a pro per plaintiff.
A Dublin homeowners association called upon Berding|Weil Partner Scott Barton and associate Timothy Smith to resolve their claim against Standard Pacific for defective common area roadways. By working closely with expert consultants and opposing counsel a $350,000 settlement was reached just a year after the case was filed. Whether its a big case or a relatively small case, Berding|Weil has the knowledge, depth and experience necessary to achieve timely cost effective results for its clients.
Settlement status as of April, 2011
After more than two years on appeal, the class action settlement has been confirmed by the Courts. During the two-year post-settlement period, the claims that were submitted for compensation were evaluated according to the protocols that were established in the settlement process. Claimants should receive a letter directly from the Claims Administrator, Heffler, Radetich & Saitta LLP, detailing their claim status and the amount of their award. The award determination was an independent evaluation performed by the Claims Administrator; Berding & Weil was not involved in the determination process and therefore we cannot answer any questions regarding the Claims Administrator's letter. Please contact the Claims Administrator if you feel your claim was not properly considered or appears to be in error. Also, since Berding & Weil has not been copied on any of the letters that have been sent out, if you have not received any correspondence about your claim, you should directly contact the Claims Administrator's office. The Claims Administrator's contact information and further details can be found at www.petfoodsettlement.com
Just over two years ago in November 2008, the board of directors of Vineyard Terrace faced a difficult choice- - file suit against the builder of their project, or saddle their owners with millions of dollars in special assessments to repair defects left behind by the developer . Fortunately for the owners, their board chose to place responsibility where it belonged --with the builder--to repair significant damage caused by earth movement, leaking roofs, windows , decks and failed paint coatings. Berding|Weil Partner Scott Barton and associate Timothy Smith lead a very experienced team of paralegals and staff which netted Vineyard Terrace a $4.85 million settlement days before the commencement of trial , leaving Vineyard Terrace and its members well positioned to make necessary repairs.
Lots of attorneys claim to be "litigators". In our firm, when cases cannot be sensibly resolved, we fight to vindicate our client's rights at trial.
Claims might include pursuit of construction defect recoveries or issues relating to CC&R enforcement and fiduciary duty. In February, Partner Paul Windust and Associate Anand Upadhye obtained a unanimous 12-0 Jury verdict that vindicated the decisions and handling by a 64 unit condominium community association board of directors in dealing with a flooring and nuisance dispute. The Jury returned a complete defense victory after a three week trial during which the association faced breach of fiduciary duty and breach of governing document claims. The Plaintiff claimed that the association failed and refused to enforce a flooring restriction contained in the governing documents against an upstairs neighbor. Berding - Weil attorneys were successful in having the Judge throw out the breach of governing document claim just before trial and successfully presented a business judgment defense to the jury on behalf of the association's handling of the flooring dispute. The association engaged Debra Warren of Cinnabar Consulting as its expert and she provided valuable testimony as to director duties and standards for measuring how they are carried out.
The Jury's verdict confirms that board decisions will be respected when those decisions are documented, made in good faith and in the best interests of the community. As the prevailing party, the association will seek reimbursement of its attorneys' fees from the plaintiff.
The owners at Portside Village in Benicia wanted nothing more than a bayside home near the marina, one where they could enjoy the benefits of living by the sea. After a few years, they discovered that they were dealing with other, unexpected effects of their location. Because of failures by the design professionals and contractors, the buildings were settling more than expected, and needed releveling. In addition, during high tide and heavy rainfall conditions, the storm drains turned into bubblers, resulting in flooding of garages and other common areas; and decks were leaking, causing decay and structural concern. While the developer acknowledged many of the problems, it was necessary to litigate the case to force the negligent parties to accept responsibility. That acceptance resulted in a $14,980,000 settlement just before opening statements in Solano County Superior Court. The Berding & Weil team of lawyers, paralegals, staff and a diverse group of experts, led by partners Allison Andersen and Randy Paul, worked hard to achieve the result which totals $129,000 per unit. This result could not have been achieved without an experienced , trial-ready team.
On January 11, 2011, Berding|Weil attorneys Tyler Berding and Chad Thomas settled a complex construction defect lawsuit on behalf of a luxury 62-unit condominium development located in Mill Valley, California. The project was experiencing water intrusion through decks, doors, and windows, as well as problems with drainage, roofs, and HVAC systems. This case was vigorously defended and posed difficult factual and legal issues, including a defunct developer, problematic insurance coverage, and many subcontractors with overlapping and sometimes poorly defined scopes of work. Despite these obstacles, the Berding|Weil team, including talented and dedicated paralegals and staff, successfully resolved this case. Importantly, this settlement occurred without the expense associated with formal written discovery, depositions, and trial. With the benefit of this settlement, totaling $71,854.83 per unit, the homeowners association is now well positioned to meet its future maintenance and repair obligations.
The Sobrato Development Co. has reached a tentative legal settlement with a real estate investor named John Evilsizor, helping to end a 3½-year legal dispute over the sale of a $21 million Concord apartment complex.
The settlement, reached on Aug. 12, is still subject to court approval, but it could help wind down the legal conflict that has pitted two well-known Bay Area real estate companies against each other, and both of those companies against Evilsizor, who owns and operates several apartment complexes in California.
Cupertino-based Sobrato reached a tentative agreement the same day it began settlement talks. Dan Rottinghaus, an attorney for Evilsizor, declined to disclose the terms of the deal but said it would involve Sobrato “paying some money” to his client.
A Fremont, CA condominium conversion case settled on March 19, 2010 just before Berding|Weil partner Randy Paul was to give his opening statement to the jury in Alameda County Superior Court. This is an excellent result for the client, which faced the usual array of difficulties for a condo conversion case which encountered fierce resistance from the defense and their insurance carriers. The trial team of Randy Paul, Allison Andersen and Elizabeth Bassett built on the efforts of partner Scott Barton, associates Andy Baugh, Jordan Rojas, and paralegals Lisa Bertorello and Laurie Schremp. All performed arduously in this hotly contested construction defect and budget underfunding matter. This settlement will enable the homeowner association client to fund repair of critical building components.
Berding and Weil Partner Paul Windust and Associate Andrew Baugh emerged victorious against a nationally known real estate investment company based in Cupertino, California and a national commercial real estate brokerage based in Palo Alto, California. After a three week jury trial, the jury returned a 12-0 verdict in favor of our client, awarding $2.447 million in damages against both defendants arising from the seller's and broker's failure to disclose plumbing defects in a 218 unit apartment complex in Concord, California. The verdict is particularly noteworthy because the case was tried in Santa Clara County Superior Court, the defendants' home turf.
Most home sellers and buyers are familiar with the duty to disclose unseen defects in residential real property. Less clear is what that duty is in the context of the sale of commercial property between two sophisticated/investor parties. Further, nondisclosure cases are difficult because they present complex issues and rely heavily on witness and expert testimony. Paul and Andrew efficiently organized these concepts and materials and presented a clear and concise case to the jury. Making this case even more challenging was the defendants' numerous pre-trial and trial motions based on exculpatory and disclaimer provisions in the purchase and sale agreement. They argued persuasively to the Court that exculpatory and disclaimer provisions are no defense to fraud and deceit claims."
The jury`s verdict, handed down on February 1, confirms that the duty to disclose is alive and well and requires affirmative action by a seller of real property, regardless if the property is residential or commercial. Congratulations to Paul, Andy and the team!"
Berding|Weil Attorneys Tyler Berding and Chad Thomas put a $7.25 Million settlement on the record of the San Mateo County Superior Court on January 26, 2010, shortly before trial was to commence. The talented team of attorneys and staff had fully prepared the case for trial. Chad in particular had deposed dozens of expert witnesses and had worked tirelessly with our team of experts to investigate the project and prepare for trial. The settlement was obtained for the Altamar at the Ridge Owners Association which is responsible for the maintenance and repair of the 214-unit condominium complex located in Brisbane, California. The case was vigorously defended by the developer and subcontractors and presented more than the usual array of factual, legal and insurance issues. Congratulations to the Board of Directors who worked with us tirelessly for four years to obtain this great result.
"On behalf of all the Board, we thank you and the Berding Weil team for all your hard work these last several years. There's no doubt in our minds that we picked "the best of the best" to represent us in our lawsuit. Everyone at Berding Weil was a true professional, and we enjoyed working with you all. - Kevin McHenry"
B|W Attorneys Randy Paul and Allison Andersen settled a construction defect suit for Cielo Gardens for $1,675,000 in Santa Clara Superior Court on Friday, January 22, 2010. The settlement obtained for this 25 unit community association averages $67,000 per unit. Settlement was reached just prior to the commencement of depositions in advance of a trial date of April 6, 2010. The settlement occurred just two and one half years after the notice required by California Civil Code 1375 and two years from filing of the complaint. Congratulations to Randy, Allison and their staff for this great result.
Resort properties troubled by construction defects pose particularly difficult legal and practical challenges for their management and counsel. Timeshare properties further complicate the issues. Throughout the entirety of the litigation process, resort management, owners associations and counsel must recognize that timeshare owners expect their vacation time to be a joy. Owners look forward to first class accommodations and refuse to be inconvenienced by destructive investigation. Once the defects have been identified and evaluated, special care must be taken in working with experts to determine a repair that is effective from cost and convenience perspectives. Resort management, counsel and owners associations must consider and fulfill their numerous responsibilities to the timeshare owners. The owners are understandably less tolerant of jackhammers, Sawzalls, hammering, noise and dust.
In a recent case handled by Berding|Weil Partner Randy Paul and Associate Allison Andersen, all these issues were primary. Working with our co-counsel in Los Angeles (with whom we had collaborated on another substantial resort case), we succeeded in recovering more than $25 million for repairs and compensation for consequential loss resulting from design and construction deficiencies at a major lakeside mountain timeshare resort. In addition to the attorneys, our experienced team of paralegals and support staff worked tirelessly to arrange inspections, review documents and assist in preparing for a multitude of depositions. We assembled a team of experts from across the country to analyze the construction problems and craft repair recommendations and protocols finely honed to the clients' needs.
It is this synergistic effort that sets our firm apart from the routine. We are able to fine tune our efforts to cases from the smallest single family home or condominium to properties requiring the complex integration of the skills of many experts and a dynamic legal team.
Scott Barton, along with associates Elizabeth Bassett, and legal assistants Laurie Schremp and Lisa Bertorello, scored a major victory against a framing contractor in a Las Vegas trial on behalf of Berding|Weil client Canyon Villas Apartment Corp. The two week jury trial was vigorously defended every step of the way, but in the end the jury was persuaded by Mr. Barton`s evidence and legal argument. The jury`s verdict, handed down last Friday, represented the plaintiff`s entire demand and wrapped up a 10 plus year streak of favorable settlements and awards in more than a dozen different Las Vegas construction defect cases. Congratulations to Scott and his team!
The Saga of University Lofts: A Study of Perseverance and Justice
The owners at University Lofts are a diverse and deserving bunch. Built in 1997as a mixed use project catering to persons with physical disabilities, the Berkeley, California project exhibited much promise. With a location near Downtown Berkeley and the University of California, it was attractive to people who wanted an urban environment with proximity to needed services and amenities. In addition, as a project built in partnership with the City of Berkeley, it was conceived as a way to provide affordable housing for moderate means individuals with physical disabilities. Each unit was designed to be fully accessible.
Unfortunately, the realization did not match the promise. A few years after construction, it became evident that there were substantial water intrusion issues needing attention. While the developer and general contractor attempted to make repairs, the respite was short-lived. By 2005, water was again creating serious difficulties. At this point the Association sought legal assistance from Berding & Weil. The firm assembled a team of experts to determine what was wrong and what it would take to fix the problems. It became clear that some of the problems were so severe that emergency repairs would be necessary to ensure a safe structure.
Despite compelling evidence that the problems were real, resolution of the case was anything but simple. Lack of insurance and recalcitrant carriers even where there was insurance complicated the case, and ultimately necessitated that the case be tried to a jury. Even with the concession that much was wrong, the last offer before trial was $725,000.00, a small fraction of what was needed to correct the defects. So the case started trial and only settled the day before closing arguments were to occur. The settlement: $2,750,000.00, an amount that truly reflects the needed repairs and costs incurred prior to trial.
In today's litigation environment, cases must sometimes be tried to maximize the recovery and expose the weaknesses of the myriad of defenses put up by insurers and others. Berding & Weil is always prepared to take any case to trial when needed to maximize recovery. We have the talent and resources to make our client's day in court a successful one.
||Marian Rigney Hawksworth
On March 16, 2009, Berding | Weil attorney Paul Windust concluded a month long trial in Marin County in which he successfully defended his association client against 13 claims by an owner and also obtained a money judgment in excess of $49,000 for unpaid assessments.
The plaintiff owner had claimed that the association failed to carry out its fiduciary duties and breached the terms of the CC&Rs in failing in its maintenance and landscaping duties over a 15 year period. The plaintiff owner also challenged the association's CC&Rs, alleging that the membership vote approving the amended CC&Rs was conducted fraudulently and further that they never attached to the development.
The plaintiff called as witnesses board members from as far back as 1998, some of which no longer lived in the association, and attempted to prove that the association's management, experts, and legal counsel conspired to take away owner rights and advised the association in a manner to serve their own interests.
The court found against the plaintiff and in favor of Mr. Windust's association client on all counts.
Mr. Windust was able to prove that the board members properly used their business judgment in managing the association, in hiring experts, vendors, and management to meet the challenges faced by the association.
The firm was also successful in prosecuting a counter suit which sought recovery of unpaid assessments from the plaintiff from as far back as 2003. We were able to prove that the association properly followed its collection policy in referring the unpaid assessment account to its collection agency, and that all statutory requirements governing assessment liens were followed. The documentary evidence in the case was extensive and showed that the board properly documented its decisions with respect to management of the association and the handling of the collection issues with respect to this owner. The Judge indicated that the association would be entitled to apply to the court for its attorneys' fees incurred in defending plaintiff's lawsuit and in prosecuting the counter suit for assessments.
Attorneys from about 60 law firms that filed lawsuits on behalf of dog and cat owners in the wake of a national pet food recall have reached a 24 million dollar settlement with lawyers for Canadian manufacturer Menu Food Holdings Inc. and a dozen other groups of defendants.
REPRESENTATIVE CASES AND RECOVERIES
304-unit apartment complex. Defects include water intrusion through roofs and membrane decks, structural electrical and fire safety defects. Settled $4.5 million.
The class action complaint in this lawsuit alleges that this roofing shingle made from 2/3 Portland cement and 1/3 wood fiber and manufactured by Cemwood Shakes is defective. Two-phase settlement for approximately $160 million.
234 units, construction defects, settled $2.5 million
Class action for landslide litigation injunctive relief and damage claim for homeowners damaged by landslide. Jury verdict/Settlement for $5.5 million.
Class action for roofing product - Settlement for New Cal Shake. Jury verdict Contra Costa County Superior Court for $62 million.
50-unit condominium project. Settled for $2.3 million.
244-unit town home project. Major siding defects with window, sliding glass doors and common wall problems.Settled for $3.2 million.
256 unit project, settlement in excess of $2.5 million.
Construction defect case involving water intrusion for a 16-unit condominium complex. Settled $660,000.
30 unit building within an association, catastrophic roofing damage, $4 million settlement.
105-unit condominium complex; defects with windows, decks and roof causing extensive water damage. Settled for $4.1 million.
Construction-defect case involving a apartment-to-condominium conversion in Pasadena, California. The Association's cost estimate to repair the defects associated with the 39 units was just under $1 million. The case settled on March 2, 2010, for $800,000 (i.e., $20,512 per unit).
Defective roofs, windows, sliding glass doors, balcony and patio walls, entry and balcony decks, stairs. Settled for $7.3 million.
297-Unit Project. Trial against drywall subcontractor. Settled for $3.5 million.
High rise apartment complex; defects in exterior cladding and roofs. Settled for $1.030 million.
Defective roofs, windows, sliding glass doors, balcony and patio walls, entry and balcony decks and stairs. Settled for $3.5 million.
Condominium project, settled for $2.5 million.
Construction defects, settled in excess of $180,000,000.
A collection of luxury ski-in/out condominiums. Settled for just under $3.3 million
National class action against Menu Food Holdings, Inc. for tainted pet food resulting in death of hundreds of dogs and cats. Settled $24 million.
130-unit condominium project.Settled for $3.5 million.
152-unit condominium project. Stucco, window and flashing problems. Settled for $12.6 million.
Condominium conversion involving failure to provide proper sea protection. Settled during trial for
99-unit condominium project . Settled for $2,275,155.
Over 3000 apartment units; defects include windows, decks and exterior cladding. Settlements to date: $100 million.
13-story commercial building; 132,000 sq'; HVAC defects; fire system problems; defective fire wall construction and stairwell; ADA compliance issues. Settled for $2.43 million.
Construction Defect and first party insurance claim case. Settlement in excess of $180 million.
46 unit condominium project, significant roof leaks, dry rot and termite damage, Settled for $2,3 million.
Construction defect case - three-building business park. Defective soils. Settled $722,500.
326-unit condominium project. Major structural defects, soil settlement problems, roofing and sheet metal flashing defects, window defects, problems with siding, chimneys, common walls and acoustics. Settled for $18.75 million.
151-unit condominium project, water intrusion, soils settlement, saltwater incursion into manmade lagoon, siding, and roofing. Settled for $8.5 million.
Major landslide remediation. 920-unit residential Community. Trial to jury verdict of $5.84 million. Judgment satisfied.
192 units, construction defects, settled for $2.45 million.
Landslide into protected habitat. Trial to jury verdict of approximately $1.25 million.
Class action for defective fire sprinklers. Consent agreement to recall the product and replace it with new product including labor for installation.
SFFB is a non-profit corporation and is the largest anti-hunger organization located in the City and County of San Francisco. The Food Bank's defective 40,000 square-foot concrete warehouse floor was the reason for this suit. Settled for $1 million.
Two luxury condominium high-rise towers over a podium deck. The association had claims pre- and post- control by the homeowner/purchasing members. The total settlement was a very large eight-figure resolution.
Defects with design of large parking structure. Settled for $2 million.
126-lot planned unit development. Siding, flashing and structural defects. Settled for $5.2 million.
Defective roofs, windows, sliding glass doors, balcony and patio walls, entry and balcony decks, stairs, entry and utility doors, fire walls, structural framing and concrete, stucco, sidewalks, asphalt driveways, drainage, plumbing, HVAC, and electrical. Settled for $3.5 million.
74-individual homes. Slab moisture and various architectural defects. Settled for $2,590,000.
17-story mixed use condominium with major plumbing problems and below grade waterproofing issues, Settled for $1.875 million.
206-unit condominium project. Fire safety issues, structural issues, soils settlement. Settled for $4.4 million.
12-story commercial building. Fire damage. Jury trial to verdict against owners. $783,000. Insurance claim settled for $433,000
Construction defect claim settled for $776,000.
Twin Tower-297 apartment units; 3 commercial floors; 364,155 square feet. EIFS failure; water intrusion through windows; fire safety issues. Settled for $4.633 million.
300-unit condominium project. Major structural/framing problems, major water intrusion through windows and roofing defects as well as drainage problems. Settled for $6.5 million.
Breach of contract case brought by homeowners against general contractor for common area repairs. Settled $300,000.