CASES

CONSTRUCTION LAW

• Public agencies often use their superior bargaining position to withhold payments on public construction projects, in violation of the prompt payment statutes. They attempt to mask their unlawful behavior by citing inconsequential errors in payment applications or by unilaterally assessing liquidated damages then adding a 50% withhold on top of that to bludgeon contractors into a settlement. Last week, a Southern California city did that to one of Reid & Hellyer's clients. Jim Manning was able to arrange a meeting among all concerned, diffuse past emotions and negotiate a settlement that saw the city reverse its position on liquidated damages in exchange for the release of a disputed extra work claim of questionable value.

CONTRACT DISPUTE

• A Motion for Summary Judgment was successfully won by one of Reid & Hellyer’s senior partner’s, Thomas L. Miller, for one of his clients pertaining to a building contract dispute.  Reid & Hellyer’s client, a business owner, contracted with a very large contractor to construct a new building for his business.  The original cost for the building was to be $750,000.00 but ran well over $1,000,000.00 upon the completion of the building.  A dispute occurred regarding payment and Attorney Miller and his staff determined that the building contractor did not possess the appropriate contractor’s license.  The contractor initiated a foreclosure to try to collect.  Attorney Miller filed a lawsuit and a motion to stop the foreclosure action.  An injunction was granted by the Court in favor of attorney Miller’s client and the foreclosure was stayed.  Attorney Miller then moved for summary judgment on the lawsuit and also on the cross-complaint filed by the contractor.  The Court granted summary judgment in favor of Attorney Miller’s client, the business owner, on both the complaint and the cross-complaint, finding that the contractor did not possess the appropriate contractor’s license.  The result was that, because the contractor was unable to collect as a result of its license problem, attorney Miller’s client did not have to pay for the work performed by the contractor. 
  
  Defendant contractor appealed the Court’s ruling on the Motion for Summary Judgment.  Briefs were filed by both parties and the Court of Appeal issued its opinion affirming the trial court’s judgment and denying Defendant contractor’s appeal, and awarding attorney Miller’s client costs on the appeal.  Defendant contractor filed a petition for rehearing with the Court of Appeal, and the Court of Appeal denied the petition for rehearing.  Defendant contractor then filed a petition for review with the California Supreme Court, and the Supreme Court issued its ruling, denying Defendant contractor’s petition for review.  The Court of Appeal’s opinion became final on April 24, 2007, and the Court of Appeal awarded costs to attorney Miller’s client.
  
  Attorney Thomas L. Miller has been responsible for handling complicated real estate  transactional matters on behalf of several sellers involving large parcels of undeveloped real property purchased by several large developers, including SCC Acquisitions, Inc., Covenant Development, Inc., American Housing Group, Inc., and Copper Hill Investment, L.P.  As a direct result of Attorney Miller’s real estate experience, commitment to each client he works for, and to see thru the successful outcome of each transaction he works on, he has been responsible for obtaining over $52,000,000.00 for his (seller) clients on the last four transactions he has worked on. 
  
  Attorney Miller has been responsible for the initial negotiations of both the sale and purchase of large parcels of undeveloped real property, representing both buyers and sellers, from preparing letters of intent, to negotiating the sale/purchase transaction, escrow considerations, title issues, due diligence, to subdivision and development issues, all the way thru to finalization, recording, and close of escrow.
  
  Additionally, in one particular real estate transaction he oversaw last year in which he represented the Seller, Attorney Miller was successful in obtaining an additional $5,000,000.00 for his client.  After negotiations and face to face meetings, a deal was consummated and as a direct result of Attorney Miller’s negotiations, Attorney Miller’s client left the meeting with an additional $5,000,000.00 in his pocket.
  
  With Attorney Miller’s more than 30 years of practice, experience, and expertise, he has also has a successful practice in the business and corporate law arena.  Attorney Miller offers a wide variety of services to his business clients, such as business formation, including partnerships, limited liability companies, and corporations.  He maintains the corporate requirements, required under the California Corporations Code, preparing minutes of special and annual meetings of the Board of Directors and Shareholders, filings with the Secretary of State, corporate documentation, handling of tax audits, business transactions, and dissolutions.  Attorney Miller also handles complicated business sales transactions for both buyers and sellers.  In the last year, Attorney Miller has been the transactional attorney on more than 15 purchases/sales of businesses both in state and out of state.

• Attorneys David Moore and David Bristow  successfully defended a publicly-traded biotech firm in a complex breach of contract and intentional interference with contract action in Riverside County Superior Court. Despite being retained just three months prior to trial, Moore and Bristow succeeded in obtaining a complete dismissal of their client after three weeks of trial for a waiver of costs on a case in which the plaintiffs were seeking in excess of $10 million from the defendants.

CLOSING ESCROW

• Need to open and close an escrow in short order? In less than two weeks, Jim Manning successfully shepherded a complicated commercial real estate sale, which included personal property and the partial settlement of a lawsuit. It had to close on a specific date in order to avoid pre-payment penalties, which neither party wanted to pay.

PARTNERSHIP DISSOLUTION

• Chris Peterson  successfully represented a client in a partnership dissolution action against the other partner. The client and partner entered into a partnership to develop the partnership's sole asset, real property located in Montclair, California. The partnership agreement was drafted by the partner’s trustee. It appeared to the client that the partnership agreement acknowledged an initial contribution of $400,000 by each partner. The client contributed the land and the partner contributed cash to the partnership. After unsuccessful attempts to develop the property, the client and partner agreed to sell the subject property. The original partnership agreement expired in 1995. The partner’s trustee drafted an amendment to the partnership agreement which modified the original agreement by vesting sole management authority to the other partner for the partnership and by requiring the client to actually "prove up" the amount of the initial contribution, while the other partner was not required to do the same. This amendment was never agreed to by the client. The property eventually sold for 2.25 million dollars. A dispute arose as to how much credit the client was entitled to receive for the client’s initial contribution. The partner argued that the client’s initial contribution was in the amount $101,787.00. Mr. Peterson successfully convinced the arbitrator that the amendment to the original partnership agreement was invalid and that the client’s initial contribution was in the amount of $400,000. Based on the profit distribution and amounts credited for subsequent contributions, this increased the client’s share of the partnership assets by approximately $180,000 over what the client would have otherwise received.

• This matter involved a dispute between two former partners of a radio telecommunications business. When the partnership dissolved, there was approximately $1.6 million in assets which each partner sought to recover. Attorney Michael Kerbs represented the defendant and cross-complainant, the partner that had been locked out. After a three week court trial, the trial court ruled in favor of the client and awarded it all of the partnership assets.

ANTI-SLAPP STATUTE

• California's anti-SLAPP statute  is a powerful tool for newspapers sued for publishing stories or even asking questions for a story. One of the firm's newspaper clients was sued for invasion of privacy because it juxtaposed an individual's photograph with a story about a report on obesity. Jim Manning flied an anti-SLAPP motion, which was granted. The court ruled that the photograph had been taken in a public place and published a public fact (one's appearance), i.e., there had been no invasion of privacy.

CAL-OSHA

• Cal-OSHA (California Occupational Safety & Health Admin.) cited a general contractor under the multi-employer and other code sections, essentially making the general the guarantor of the design professionals and two subcontractors' work, despite a lack of actual knowledge of any problems with it, until a collapse occurred. Cal-OSHA would not amend its constructive knowledge stance (i.e., it decided that the general should have known before the collapse), but Jim Manning prevailed upon it to revise the citation to a narrower code section not dealing with design issues, thereby reducing the risk of a "Repeat" citation in the future, with its increased penalties.

CPRA/FOIA

• The California Public Records Act (CPRA) is similar to the federal Freedom of Information Act  (FOIA). The stated policy in both is to allow as much access to public information as possible, with specific, narrow exemptions. Unfortunately, too many agencies reverse that, expansively claiming exemptions and narrowly defining what they have to disclose.  Jim Manning was able to negotiate the release of a city's public records to one of his newspaper clients, which resulted in a competitive advantage for the client. Further, the client avoided the delay and expense of a lawsuit.

• Community and professional organization involvement is paramount at Reid & Hellyer. Recently, David Bristow was appointed an attorney representative to the U.S. Ninth Circuit Judicial Conference. Both he and Dan Katz are currently on the Riverside County Bar Association board. Chris Peterson is a current board member for Barristers. These are just a few recently appointed positions held by Reid & Hellyer attorneys. Read more about professional organization and community involvement on our Attorney Profiles .

• Prominent Litigator,  Terry Bridges, named as one of the "Best Lawyers in America" since 1993, has received the Civility Award from the American Board of Trial Advocates. This award is given out to the lawyer "whose exemplary integrity, civility and professionalism inspire trust among counsel and promote civility and respect within and for the profession." Mr. Bridges has specialized in Business Litigation throughout Southern California since 1966. He is a past President of the Riverside County Bar Association, and a Founding Member, past President and Master Emeritus of the Leo A. Deegan Inn of Court. He has received an AV rating from Martindale-Hubbell since 1970, and is a Member of the American Board of Trial Advocates.