NEWS & PRESS RELEASES
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.
On March 2, 2010, Berding|Weil Litigation Partner Jan A. Kopczynski settled a complex construction-defects lawsuit for the Del Mar Terrace Homeowners Association in Pasadena, California. This 39-unit development was originally built as apartments in the late 1980s, but it was converted into condominiums in 2003. By the time they brought suit, the development was experiencing severe water intrusion and consequential damages. Given that the Association was time-barred from pursuing the original developer, the case posed many factual and legal challenges. Not only did the converter defend itself aggressively, but the insurance coverage was also very problematic and the Association had to fight through the converter's bankruptcy. It wasn't until defense counsel had exhausted their legal challenges, and with a October 2010 trial date on the horizon, that the converter agreed to settle the case. The end result was $20,513 per unit. Litigation associates Matt Malone and Chad Thomas, as well as paralegals Robyn Evans and Lisa Gozo, were instrumental in resolving the case.
The President of the board of directors, Deanne Dulyea, wrote the following regarding this case:
Dear Mr. Berding,
Del Mar Terrace HOA settled our claim against Nevis Homes Tuesday. Even though this was a more challenging case than we all anticipated, we are extremely pleased with the outcome. Jan's expertise and guidance made this settlement possible. He kept us informed throughout the claim and was available when we had questions or needed advice . He supported us and our homeowners through the stressful depositions and the defense’s many delays. I don't think there is another attorney that would have worked harder for us. And I would like to thank you for taking our case on contingency and making it possible for the HOA to get the destructive testing and the expert advice of Adcock and McCormick. We are now able to begin repairing our building and make Del Mar Terrace a good place to live. We knew that we had a terrific attorney and an excellent law firm representing us and we were not proved wrong.
Wishing you, Jan and your team all the best.
Sincerely,
The Del Mar Terrace Board of Directors
Deanne Dulyea
President.
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.
Botched condo conversion tied to nonprofit's venture.
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.
| Trial Team: |
Attorneys: |
Randy Paul |
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Robin Day |
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Matt Malone |
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Paralegal: |
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.
Congratulations, Paul!
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.
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.
Construction defect case involving water intrusion for a 16-unit condominium complex. Settled $660,000.
105-unit condominium complex; defects with windows, decks and roof causing extensive water damage. Settled for $4.1 million.
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 $2.7 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.
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
$7 million.
99-unit condominium project . Settled for $2,275,155.
Over 3000 apartment units; defects include windows, decks and exterior cladding. Settlements to date: $50 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.
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.
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.
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.
