Litigation

Litigation 

Business Litigation                  Environmental and Natural Resources Litigation
Construction Litigation   Real Estate Litigation
Eminent Domain Litigation   Writs and Appeals

 

BUSINESS LITIGATION

Primary Attorney Contacts: Eileen M. Diepenbrock, John V. Diepenbrock, Jennifer L. Dauer, Chris A. McCandless, David A. Diepenbrock, Jonathan R. Marz

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.

Prosecuted claim under California Producer’s Lien Law to establish priority to proceeds earned on sale of clients’ consigned farm products, where proceeds had been received by insolvent processor and deposited with defendant lender.  Case involved complex issues raised by intersection of Uniform Commercial Code and bailment law.

Represented independent insurance marketing organization in asserting claims against competitor for breach of contract, trademark infringement, and unfair competition.  Obtained favorable settlement immediately after trial court granted our motion for preliminary injunction. 

Represented developer of natural gas storage facility in contested proceeding before California Public Utilities Commission. 

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. 

Represented hospital system in multiple lawsuits involving claims arising from the marketing and sale of radiology equipment.

Advised client regarding limitations upon its product distribution following a voluntary recall of products in commerce.

Advised and represented client in cancellation of trademark that infringed upon the client’s mark.

Advised client regarding use of sinking fund for unredeemed debt instruments upon dissolution.

Counseled major agricultural corporation concerning a court directed buy-out of a shareholder pursuant to Corporations Code section 2000 upon action to dissolve the corporation.

Arbitrated value of Bay 101 Casino, located in San Jose, California pursuant to buy-sell agreement on behalf of client with substantial ownership interest in Casino.  Assisted client in obtaining State Gambling Control Commission approval of stock sale and licensing of client to receive sale proceeds.

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.

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.

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. 

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.

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. 

Representation of Fortune 100 corporation in obtaining pleading-stage dismissal of putative class action seeking injunctive relief and damages under Consumer Legal Remedies Act for alleged misleading advertising.

Represented division of Fortune 500 corporation in defending against lawsuit seeking over $20 million brought under California Franchise Investment Law. Obtained highly favorable settlement prior to trial.

Defended mining operator against claims brought by air quality management district seeking civil penalties exceeding $91 million for alleged violations of state and local air quality laws.  After taking or defending over 30 depositions and defeating the district's motion for summary adjudication regarding our clients' civil rights cross-complaint, the parties agreed to a mutual release of claims.  Our client paid nothing as part of the settlement.

Represented minority shareholders in action seeking involuntary dissolution of corporation based on alleged misfeasance by controlling shareholder.  Obtained fair value for clients' ownership interest through settlement after controlling shareholder sought buy-out under Section 2000 of the Corporations  Code.

Represented flooring distributor in dispute with manufacturer concerning parties' performance under distributor agreement.  Negotiated favorable settlement following extensive discovery, which included multiple out-of-state depositions.

Represented co-owners of business in a dispute involving allegations of defalcation, breach of fiduciary duty, and overall mismanagement of the company's affairs.  Succeeded in negotiating a resolution to clients' satisfaction prior to initiating lawsuit.

Represented company in claim against its prior controlling shareholder based on his breach of non-complete covenant contained in purchase and sale agreement.

 

CONSTRUCTION LITIGATION

Primary Attorney Contacts: Eileen M. Diepenbrock, Jennifer L. Dauer, Chris A. McCandless, Jonathan R. Marz

Represented contractor in an action to foreclose a mechanic’s lien against owners of a water treatment plant reservoir for a residential subdivision that purportedly was conveyed to a local water district after construction, raising novel issues involving the right to lien property where the property subsequently becomes public property.

Represented prime contractor and surety in action by subcontractor to recover damages for lost profits, standby, and extended home office overhead under Eichley formula, where subcontractor was terminated before mobilizing for work on power plant construction project.

Represented prime contractor in action against local transportation district regarding claims for extra work during construction of major freeway improvement project, involving contract interpretation and application and relationship between contractual claims provisions and Government Code claim process.

Successfully represented underground drilling contractor in preparing, recording and perfecting mechanic’s lien to secure payment for underground conduits and cabling installed by contractor for large cable company.

Assisted in representing State agency in defending against claim for breach of contract for default termination, and in recovering additional costs of completion.

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

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

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.

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 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.

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 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 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.

 

EMINENT DOMAIN LITIGATION

Primary Attorney Contacts: David A. Diepenbrock, John V. Diepenbrock

Prosecute inverse condemnation claims on behalf of  property owners seeking damages resulting from large public works project carried out in Plumas County.

Defended owners of 86.7 acres of land located in Sacramento County in condemnation action brought by the Sacramento Area Flood Control Agency as part of its development of the Natomas Levee Improvement Program.

Defended owners of 305.75 acre parcel located at the intersection of Highway 99 and Elverta Road in partial take action brought by the Sacramento Area Flood Control Agency.

Defended owner in partial take action brought in connection with freeway interchange project located at Sheldon Road and Highway 99.

Represented owner in condemnation action brought by the Bay Area Rapid Transit district in connection with the development of a BART station located in San Mateo County.

Represented landowner in condemnation action brought by the State to acquire an abandoned right-of-way and adjacent land near the town of Locke for the Delta Meadows State Park. One of the main issues was the nature of the owner’s title to the land, which involved a determination regarding the land as of the date California was admitted to the Union. Defeated State’s contention that all of the land in question was tideland, rather than upland, which resulted in client obtaining right to full market value for such land.

Representation of owner of 282 acres of land located at the waterfront above the Union Valley Reservoir in a case tried in federal court. Our success at trial is attributed in large part to key rulings that (a) the condemnee was entitled to value of the upland enhanced by the somewhat earlier taking of the reservoir which was, therefore, a "separate project" and (b) that condemnee had the option to value the taking either as a separate parcel or as part of the larger remainder.

Defended landowner in a condemnation action in which CalTrans sought a strip of railroad right of way land approximately 20 feet wide and 6,000 feet long for the construction of an interstate freeway. The case involved several novel valuation issues and became a leading authority for the valuation of "transportation easements" and the types of evidence that may be introduced at trial. The jury verdict was a multiple of CalTrans offer and was sustained on appeal.

Represented landowner in a 1500-acre taking that was tried to a jury verdict in federal court. The final result was approximately 3x the condemning agency’s appraisal.

Represented Southern Pacific Company in the condemnation of expansion lands needed for its Roseville receiving yard, and involved the taking of approximately 50 acres of land then in the process of residential subdivision. The case was tried before a jury, to an end result which was acceptable to Southern Pacific.

In a taking by CalTrans for a freeway project in Sacramento involving a brick and ceramic products manufacturing facility, represented landowner in case that involved very complex valuation issues and was settled on a favorable basis after lengthy negotiations with CalTrans.

Represented property owners in an eminent domain action brought by CalTrans to condemn land in Auburn, California, for widening Interstate 80. Clients sought pre-condemnation damages and compensation based on a claim of highest and best use beyond that initially asserted by CalTrans. The case was settled after CalTrans conceded to the client’s position on highest and best use of the property and to a total, rather than a partial taking.

Represented BP/ARCO in a number of service station takings incident to freeway interchange modifications, including takings by State of California (CalTrans), City of Elk Grove, City of Manteca and City of Stockton.

Represented landowners in inverse condemnation action in recovering damages to forest lands resulting from an 18,000-acre forest fire that began with a reservoir clearing operation. Obtained favorable settlement following several weeks of trial.

Represent owner of marina located in San Joaquin County in inverse condemnation action seeking damages resulting from reclamation district's modification of levee abutting marina.

 

ENVIRONMENTAL AND NATURAL RESOURCES LITIGATION

Primary Attorney Contacts: Eileen M. Diepenbrock, David A. Diepenbrock, Nicole R. Gleason, and Jonathan R. Marz

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

Represented major agricultural water suppliers before Central Valley Regional Water Quality Control Board regarding issuance of National Pollutant Discharge Elimination System permits under the federal Clean Water Act.

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

 

REAL ESTATE LITIGATION

Primary Attorney Contacts: Eileen M. Diepenbrock, John V. Diepenbrock, Chris A. McCandless, David A. Diepenbrock, Jonathan R. Marz

Obtained favorable settlement on behalf of developer asserting vendor’s lien and equitable servitude claims against entity that purchased property through foreclosure sale from bankrupt lending institution that had acquired property from defaulting purchaser.

Represented property owner in action to quiet title action to confirm easement rights. Successfully obtained judgment in favor of owner.

Represented lender in action to confirm priority of deed of trust over previously recorded deed of trust for a home equity line of credit.

Represented title company in action filed against it for fraud and breach of duty with respect to sale of property.

Successfully defended lender in action by contractor to foreclose on mechanic’s lien where contractor claimed priority over lender’s construction loan deed of trust.

Represented credit union in bankruptcy adversary proceeding to establish the priority of its deed of trust over an earlier revolving equity line of credit and deed of trust that had not been properly closed and reconveyed.

Represented lender in action to quiet title where original deed of trust and original loan documents were missing and had not been properly recorded.

Successful pleading-stage defense of claims brought against real estate investors, and members of a limited liability company, sued for breach of contract, fraud, and breach of fiduciary duty.

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. 

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 seller of multi-family housing complex valued in excess of $10 million against breach of contract and fraud claims brought by buyer who failed to fully perform its contractual obligations by the close of escrow deadline. Successfully represented seller on appeal after winning three-week bench trial, and a full award of attorney fees.

Prosecuted fraud and False Claims Act claims arising from conveyance of deed of trust valued at approximately $13 million on behalf of large Bay Area municipality that resulted in highly favorable settlement following protracted discovery battles and complete trial preparation.

Represented owners of parcel located south of Vacaville in connection with proposed specific plan for development of Vanden Meadows and related Environmental Impact Report. .

Successfully defended seller against specific performance and breach of contract claims arising from failed transaction involving a proposed commercial development in Yolo County.  Obtained favorable judgment following a two-week arbitration, and an award of attorney's fees.

Represented developer of 600-acre freeway oriented office in successful litigation to recover damages for underground soil contamination by prior landowner.

Defend lender in actions brought by a county and a district attorney seeking injunctions, civil penalties, and damages, relating to alleged releases of hazardous waste and county code violations at a marina.  Following extensive negotiations, and after conducting substantial discovery and filing a cross-complaint, resolved case through a stipulation for consent decree in which client paid no money to either plaintiff.

Represented individual assessed over $11 million in civil penalties by the State Mining and Geology Board in multiple actions, including writ proceeding in state court, and action filed in federal court seeking monetary recovery from Board for violating client's civil rights.

 

WRITS AND APPEALS

Primary Attorney Contacts: Eileen M. Diepenbrock, Jennifer L. Dauer, Chris A. McCandless, Jonathan R. Marz

Successfully defended appeal from judgment granting lien in favor of supplier of materials used in construction project.

Successfully defended CalTrans appeal from award plus attorney fees in action to condemn linear segment of railroad right of way needed for interstate highway project.

In writ of mandate action, successfully represented bidder challenging denial of bid protest of contract for drug and alcohol diversion program monitoring and testing.

Represented amicus curiae in assisting city to reverse a writ of mandate that found city had rejected bidder on public works project improperly, raising an issue of responsiveness versus responsibility. Vinciguerra v. City of San Luis Obispo, 2012 WL 2878197 (July 16, 2012) (unreported).

Successfully represented bidder overturning dismissal for lack of jurisdiction of challenge to U.S. Forest Service rule as violating Administrative Procedure Act. Fire-Trol Holdings LLC v. United States Forest Service, 209 Fed. Appx. 625 (9th Cir. 2006) (unpublished).

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

Successfully represented bidder denied its statutory bid protest right by State. United Systems of Arkansas v. Stamison, 63 Cal. App. 4th 1001 (1998).

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).

Successfully represented qui tam relator on False Claims Act complaint in overturning refusal to remand to state court for lack of diversity jurisdiction. State of California ex rel. Service Disabled Veterans Telecommunications v. MCI Telecommunications Corp., 185 F.3d 868 (9th Cir. 1999) (unpublished).