Eileen M. Diepenbrock

Eileen M. Diepenbrock


Eileen M. Diepenbrock's Profile Image
Phone: 916.492.5024
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Eileen M. Diepenbrock is a partner at Diepenbrock Elkin Gleason LLP, focusing on construction law, government contracts and business litigation. She has a Martindale-Hubbell rating of AV Preeminent Lawyer, the highest rating awarded. In 2015, she was inducted into the American College of Construction Lawyers. In November 2008, she received the distinction of being listed in Forbes as one of The 10 Most Dependable™ Litigation Attorneys of California. Beginning in 2011, she has been recognized every year as among the Northern California SuperLawyers, and in 2015, she has been recognized as among the top 50 women in the Northern California SuperLawyers. She has been named among the “Best of the Bar” by the Sacramento Business Journal in 2013, 2014 and 2015, and she has been recognized among the Women Leaders in Law in the Corporate Counsel Journal and American Lawyer in 2013.

Ms. Diepenbrock’s construction practice and government contracts practice involves successfully litigating major and complex construction cases on behalf of her clients headquartered across the country. She represents contractors, subcontractors and owners in construction delay and/or acceleration claims; claims involving differing site conditions, extra work, construction defects, and professional negligence involving architects and engineers; and government contracting bid disputes. She also represents general contractors and subcontractors on bond claims, mechanic’s liens and stop payment notices. Ms. Diepenbrock also drafts construction contracts, public bidding documents, and professional services agreements. Ms. Diepenbrock is honored to be a Fellow in the American College of Construction Lawyers. She also is active in the American Bar Association Forum on the Construction Industry and the Associated General Contractors of California.

In her business litigation practice, Ms. Diepenbrock represents clients in complex business disputes, including cases involving allegations of false advertising, breach of contract, corporate mismanagement and abuses, breaches of fiduciary duty, and corporate ownership disputes.

In addition to her advocacy work, Ms. Diepenbrock also serves as a mediator, arbitrator and neutral evaluator in construction disputes, including cases involving claims of defective work, differing site conditions and delays on private and public works building and civil projects.

Business

Represented developer in claims against seller in excess of $46 million related to purchase and sale contract with “put right.” Issues involved contract interpretation, sufficiency of wetlands permit delivered, and mitigation required for wetlands and endangered species, and an understanding of the processes and requirements of various agencies, including the U.S. Army Corps of Engineers and the U.S. Fish & Wildlife Service.

Regularly advise clients regarding substitution of listed subcontractors under Subletting and Subcontracting Fair Practices Act, including representing clients in contested substitution hearings.

Regularly advise public owners and contractors regarding public owner contracting authority, void contract rule, and false claims.

Represented international corporation in federal court defending against claims of breach of fiduciary duty and challenges to corporate management and ownership. Discovery and case preparation included international procedures and significant use of translators. 

Defended one shareholder and director in derivative action brought by other shareholder and director alleging breaches of fiduciary duty, fraud and mismanagement. Case won through summary adjudication and settlement of remaining portions of the case.

Defended corporation in class action case alleging false advertising and seeking $70 million in damages, plus injunctive relief.  Successfully settled the case with a nominal payment.  Work also involved arbitrating a $3.8 million attorney fee demand and achieving an arbitration award substantially exonerating our client. 

Represented limited liability company pursuing multi-million dollar claims in arbitration for breach of contract against 27 parties. Issues included legality of contract termination payments, alleged unconscionability, unfair business practices and restraint of trade. Following a 30-day arbitration hearing that included exchanging tens of thousands of documents, 30 percipient witnesses, five retained experts, over 1000 exhibits, and more than 500 pages of post-hearing briefing, the arbitrator concluded that our client was the prevailing party, and awarded substantial damages, plus attorneys’ fees and costs.

Successfully defended management and corporation against charges of fraud, mismanagement and involuntary dissolution in three-phase trial. Litigation involved the legitimacy of stock transfers and the corporation’s value. 

Prosecute state securities and common law fraud claims on behalf of claimants seeking recovery of approximately $20 million from California Finance Lender that failed to disclose material information regarding its real estate investment portfolio.  Clients obtained a favorable settlement following extensive discovery, and after the finance lender filed for bankruptcy protection.


Construction

Regularly advise clients regarding substitution of listed subcontractors under Subletting and Subcontracting Fair Practices Act, including representing clients in contested substitution hearings.

Successfully represented the second low bidder in litigation regarding the mis-award of a public works project, resulting in a published decision in Valley Crest Landscape v. City of Davis, 41 Cal. App. 4th 1432 (1996).

Regularly advise public owners and contractors regarding public owner contracting authority, void contract rule, and false claims.

Represent prime contractors in various cases and arbitrations against Caltrans involving disputed claims for compensation for extra work on major highway improvement projects. 

Regularly advise owners and bidders regarding bringing and responding to bid protests, including drafting and responding to detailed statements of protest and pursuing writs of mandate, where appropriate. 

Regularly draft, review and update professional services agreements, including architects agreements, engineering services agreements, construction management agreements, and consulting and land surveyor agreements.

Regularly draft, review and update construction contract general terms and conditions and special conditions for both public and private works projects.

Regularly prepare and update Site Leases and Facilities Leases for school districts’ and County Office of Education lease-leaseback projects.

Revised standard subcontract terms for prime contractor.

Regularly draft, review and update front end bid documents for public owners.

Represented public owner in pursuing claims against and defending claims of terminated construction contractor on $19 million public works contract. Litigation included exchanging tens of thousands of documents, 42 percipient depositions, 24 days of hearing, 21 percipient witnesses, over 750 exhibits, and more than 200 pages of post-hearing briefing. Our client was found to be prevailing party and was awarded substantial damages.

Represented city in defense of $3.6 million claim by drilling subcontractor for alleged differing site conditions related to construction of bridge.  Successfully settled with contribution from design engineer. 

Represented general contractor against public owner in $3 million dispute regarding construction of performing arts center. Issues involved design defects, delays, and subcontractor pass-through claims. 

Represented public owner in defending action brought by general contractor and mechanical subcontractor for delay damages and extra expenses.  Successfully settled with no contribution from client.

Defended construction engineering firm against a subcontractor’s claim for $1.6 million in alleged labor inefficiencies related to municipal wastewater treatment plant project for which client served as design engineer and construction manager.

Represented owners against developer/general contractor and multiple subcontractors in design and construction defect action involving residential properties. Successfully obtained writ of attachment, ex parte and without notice, freezing a sizable investment account held by developer.  Thereafter, the developer (1) repurchased the homes and (2) reimbursed clients’ legal expenses.

Represented city on claim for payment by contractor on public works contract terminated for convenience.

Represented major construction contractor in resolving multi-party dispute over design and construction of water treatment plant, while avoiding contract termination.


Government Contracts

Represented marina concession contractor in litigation challenging State’s early termination of its contract.

Regularly advise clients regarding substitution of listed subcontractors under Subletting and Subcontracting Fair Practices Act, including representing clients in contested substitution hearings.

Regularly advise public owners and contractors regarding public owner contracting authority, void contract rule, and false claims.

Regularly advise owners and bidders regarding bringing and responding to bid protests, including drafting and responding to detailed statements of protest and pursuing writs of mandate, where appropriate. 

Defeated, on summary judgment, allegations that construction contractor had submitted false claims, including through change order requests.

Represented city in bringing false claims allegations against construction contractor for deliberate overstatements of work performed in progress payment requests.

Represented bidder in a bid protest challenging the Department of General Services’ (DGS) intent to award a contract to a bidder that failed to meet Disabled Veteran Business Enterprise (“DVBE”) participation goals and failed to properly document DVBE solicitation efforts.

Represented low bidder defending against bid protest for multi-million dollar highway improvement project where second low bidder challenged low bidder’s efforts to achieve disadvantaged business enterprises (DBE) participation goals.  Successfully defeated petition for writ of mandate and prevailed in subsequent appeal to the Third District Court of Appeal.

Represented contractor in protest against municipal project owner for improper award of $5 million project.

Numerous representations of public owners and bidders on protests of public works contruction project awards.

Successfully represented the second low bidder in litigation regarding the mis-award of a public works project, resulting in a published decision in Valley Crest Landscape v. City of Davis, 41 Cal. App. 4th 1432 (1996).


Litigation

Successfully represented school district in defending against writ of mandate challenging authority to use Construction-Manager-at-Risk methodology.

Successfully represented the second low bidder in litigation regarding the mis-award of a public works project, resulting in a published decision in Valley Crest Landscape v. City of Davis, 41 Cal. App. 4th 1432 (1996).

Represented developer in claims against seller in excess of $46 million related to purchase and sale contract with “put right.” Issues involved contract interpretation, sufficiency of wetlands permit delivered, and mitigation required for wetlands and endangered species, and an understanding of the processes and requirements of various agencies, including the U.S. Army Corps of Engineers and the U.S. Fish & Wildlife Service.

Defended two limited liability companies (and their members) that developed a time-share resort in Napa Valley against fraud, breach of fiduciary duty, and breach of contract claims brought by project investor.  Case was settled to clients' satisfaction while their motion for summary judgment was pending. 

Defeated petition for writ of prohibition seeking to enjoin terrestrial and aquatic testing conducted in connection with proposed Bay Delta Conservation Plan.

Represented agricultural water users in successful defense of action brought under NEPA challenging habitat conservation planning process for the Bay Delta Conservation Plan.

Represented agricultural water users in twin, high-profile cases challenging federal agencies’ biological opinions related to endangered aquatic species. Litigation team obtained summary judgments finding that biological opinions were arbitrary, capricious and not supported by best available science. Team also obtained multiple injunctions pre- and post-judgment enjoining aspects of biological opinion’s “reasonable and prudent alternatives” that limited water exports from Sacramento-San Joaquin River Delta.

Represented public owner in pursuing claims against and defending claims of terminated construction contractor on $19 million public works contract. Litigation included exchanging tens of thousands of documents, 42 percipient depositions, 24 days of hearing, 21 percipient witnesses, over 750 exhibits, and more than 200 pages of post-hearing briefing. Our client was found to be prevailing party and was awarded substantial damages.

Represented city in defense of $3.6 million claim by drilling subcontractor for alleged differing site conditions related to construction of bridge.  Successfully settled with contribution from design engineer. 

Represented general contractor against public owner in $3 million dispute regarding construction of performing arts center. Issues involved design defects, delays, and subcontractor pass-through claims. 

Represented public owner in defending action brought by general contractor and mechanical subcontractor for delay damages and extra expenses.  Successfully settled with no contribution from client.

Defended construction engineering firm against a subcontractor’s claim for $1.6 million in alleged labor inefficiencies related to municipal wastewater treatment plant project for which client served as design engineer and construction manager.

Represented owners against developer/general contractor and multiple subcontractors in design and construction defect action involving residential properties. Successfully obtained writ of attachment, ex parte and without notice, freezing a sizable investment account held by developer.  Thereafter, the developer (1) repurchased the homes and (2) reimbursed clients’ legal expenses.

Represented city on claim for payment by contractor on public works contract terminated for convenience.

Represented major construction contractor in resolving multi-party dispute over design and construction of water treatment plant, while avoiding contract termination.

Represented international corporation in federal court defending against claims of breach of fiduciary duty and challenges to corporate management and ownership. Discovery and case preparation included international procedures and significant use of translators. 

Defended one shareholder and director in derivative action brought by other shareholder and director alleging breaches of fiduciary duty, fraud and mismanagement. Case won through summary adjudication and settlement of remaining portions of the case.

Defended corporation in class action case alleging false advertising and seeking $70 million in damages, plus injunctive relief.  Successfully settled the case with a nominal payment.  Work also involved arbitrating a $3.8 million attorney fee demand and achieving an arbitration award substantially exonerating our client. 

Represented limited liability company pursuing multi-million dollar claims in arbitration for breach of contract against 27 parties. Issues included legality of contract termination payments, alleged unconscionability, unfair business practices and restraint of trade. Following a 30-day arbitration hearing that included exchanging tens of thousands of documents, 30 percipient witnesses, five retained experts, over 1000 exhibits, and more than 500 pages of post-hearing briefing, the arbitrator concluded that our client was the prevailing party, and awarded substantial damages, plus attorneys’ fees and costs.

Successfully defended management and corporation against charges of fraud, mismanagement and involuntary dissolution in three-phase trial. Litigation involved the legitimacy of stock transfers and the corporation’s value. 

Prosecute state securities and common law fraud claims on behalf of claimants seeking recovery of approximately $20 million from California Finance Lender that failed to disclose material information regarding its real estate investment portfolio.  Clients obtained a favorable settlement following extensive discovery, and after the finance lender filed for bankruptcy protection.


Real Estate

Represented developer in claims against seller in excess of $46 million related to purchase and sale contract with “put right.” Issues involved contract interpretation, sufficiency of wetlands permit delivered, and mitigation required for wetlands and endangered species, and an understanding of the processes and requirements of various agencies, including the U.S. Army Corps of Engineers and the U.S. Fish & Wildlife Service.

Defended two limited liability companies (and their members) that developed a time-share resort in Napa Valley against fraud, breach of fiduciary duty, and breach of contract claims brought by project investor.  Case was settled to clients' satisfaction while their motion for summary judgment was pending. 

Ms. Diepenbrock is a member of the Legal Advisory Committee to the Associated General Contractors of California and is a Past-chair of the Committee (2000).  She is also a member of the American Bar Association Forum on the Construction Industry and of The Beavers. 

In addition to her law practice, Ms. Diepenbrock has been active in drafting legislation of importance to the construction industry.   

Ms. Diepenbrock is a member of the Board of Directors for Stanford Youth Solutions (formerly Stanford Home for Children).  She is also a member of the Board of Directors for College Possible (a non-profit organization providing college counseling and related services to economically disadvantaged students) and has been on the Board of Trustees for St. Michael’s Episcopal Day School, where she held the position of President from 2008 – 2010. 

EILEEN'S NEWS

 

EDUCATION

University of Santa Clara
BA, 1982

Pacific McGeorge School of Law
JD, 1985 

 

ADMISSIONS

California (1985)

United States Supreme Court

U.S. District Courts for the Eastern District of California, Northern District of California, Central District of California District of Colorado

Eastern District of Pennsylvania Ninth Circuit Court of Appeals United States Supreme Court Pennsylvania State Bar (1988) (currently inactive status) 

 

PRACTICE AREAS

Business

Construction

Government Contracts

Litigation

 

 

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Diepenbrock Elkin Gleason LLP
500 Capitol Mall
Suite 2200
Sacramento, CA 95814
Phone: 916.492.5000
Fax: 916.446.2640