• Property Reserve, Inc. v. Superior Court, 2014 Cap.App.LEXUS 237

    Posted March 28, 2014 By in Recent News With | No Comments

    NEW CASE UPDATE

    Property Reserve, Inc. v. Superior Court, 2014 Cap.App.LEXUS 237

    CALIFORNIA COURT OF APPEAL DECLARES CALIFORNIA STATEUS
    ALLOWING FOR PRE-CONDEMNATION ENVIRONMENTAL TESTING OF
    PROPERTY ARE UNCONSTITUTIONAL

    A California Court of Appeal recently ruled in Property Reserve Inc. v. Superior Court, 2014 Cal. App. LEXUS 237 that the California eminent domain law allowing for pre-condemnation entry for testing, as embodied in California Code of Civil Procedure (“CCP”) § 1245.010, et seq. is unconstitutional because it fails to provide landowners with certain procedural protections embodied in the California Constitution. CCP § 1245.010 states that “Subject to requirements of this article, any person authorized to acquire property for a particular use by eminent domain may enter upon property to make photographs, studies, surveys, examinations, tests, soundings, boring, samplings, or appraisals or to engage in similar activities reasonably related to acquisition or use of the property for that use.” The entry and testing scheme allowed by CCP § 1245.010 was frequently used by public entities to determine whether targeted properties were suitable to meet the public project needs.

    The Court’s ruling in Property Reserve makes clear that most environmental testing will be considered a taking that will require, at a minimum, the filing of an eminent domain complaint prior to the public entity being allowed to conduct the testing. This ruling will significantly hamper a public entity’s ability to evaluate potential acquisition sites, and may hinder the ability of public entities to approve Resolutions of Necessity to take a property by eminent domain.

    Should you like more information on how your entity can adjust its procedures in light of the Property Reserve decision, please contact Brian J. Bergman at (310) 470-6110 or bbergman@bdgfirm.com.

  • Recent Results (August 2012)

    Posted August 8, 2012 By in Recent Results With | No Comments

    The results mentioned are representative and do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

    BUSINESS LITIGATION

    1. Bergman Dacey Goldsmith represented a successful California corporation with multiple franchises against both federal and state claims of statutory violations stemming from prohibitions on facsimile solicitations. Upon evaluating the very limited potential damages that could be claimed, Bergman Dacey Goldsmith aggressively began settlement negotiations and took all necessary steps to avoid litigation being filed against the corporate client. In a period of days, Bergman Dacey Goldsmith negotiated a very modest resolution before the claimant ever filed his lawsuit, thereby ensuring the corporation could focus on its business and not be distracted by a costly legal action. Bergman Dacey Goldsmith represented this same client against a similar claim in which Bergman Dacey Goldsmith again negotiated a de minimis settlement before having to file a single document with the court.
    2. Bergman Dacey Goldsmith represented an international corporation in its defense of various business tort and breach of contract claims brought by an equipment buyer who purchased allegedly defective equipment from a former sales agent for the corporation (the equipment was actually from another co-defendant). When early investigation revealed that the sales agent was no longer affiliated with the corporation at the time of the purchase, but that the corporation had not cut all administrative ties thereby exposing itself to potential liability, Bergman Dacey Goldsmith opened settlement negotiations with the equipment buyer and through diligent efforts was able to resolve the matter for a fraction of the monies originally sought by the equipment buyers and before incurring significant litigation expense. Furthermore, Bergman Dacey Goldsmith ensured that the Court approved the good faith settlement pursuant to statute to avoid any future claim for contribution from the other co-defendant who did not settle out of the case, thereby achieving finality for the corporation. Finally, Bergman Dacey Goldsmith provided guidance to the corporate client to revise its business model to clarify its documentation practices so that future litigation could be minimized.
    3. Following a successful result in Los Angeles County wherein Bergman Dacey Goldsmith obtained temporary restraining order relief for its client, a worldwide financial services firm, against a former branch manager who was accused of having misappropriated confidential and trade secret information, Bergman Dacey Goldsmith was again retained by the same firm to obtain similar relief against a financial analyst who was accused of stealing proprietary/trade secret information in Northern California in favor of a competitor. Within less than 48 hours after being retained, Bergman Dacey Goldsmith’s attorneys marshaled the evidence, interviewed the key witnesses, drafted and filed the necessary pleading, and obtained a hearing date to present its application for a temporary restraining order and order to show cause re preliminary injunction. After presenting the application and the evidence to the court, Bergman Dacey Goldsmith’s attorneys were successful yet again in obtaining a victory in Northern California as the court decided in our client’s favor and issued a temporary restraining order against the former employee, enjoining the former employee from using or exploiting the client’s confidential, proprietary, and/or trade secret information at his new place of employment and directing and compelling the former employee to return all documents containing any confidential, proprietary, and/or trade secret information that he took with him to his new place of employment.
    4. Bergman Dacey Goldsmith represented a company that provides services to commercial and residential real estate industries nationally in obtaining immediate injunctive relief against a former officer of that company. The former officer was accused of misappropriating company confidential and proprietary information in favor of himself and a new company that he formed, through which he was providing consulting and expert witness services for litigation purposes. As the allegations read, in providing those expert and consulting services to his clients, the former officer was providing confidential, proprietary, and trade secret information of Bergman Dacey Goldsmith’s client to not only his clients but also the court and other parties in the lawsuit. In just a few days, Bergman Dacey Goldsmith’s attorneys prepared and filed a complaint and an ex parte application seeking temporary restraining order (“TRO”) relief to enjoin the former officer’s conduct. Bergman Dacey Goldsmith convinced the court to grant its request for a TRO and, later, to also issue a preliminary injunction in favor of Bergman Dacey Goldsmith’s client. Finally, through tactful negotiation sessions with counsel for the former officer, Bergman Dacey Goldsmith was able to secure a favorable settlement for its client, through which a stipulated settlement order was entered by the court and by which the defendants became bound to abide by the terms of a stipulated permanent injunction order favoring its client.

    TRANSACTIONAL MATTERS

    In a non-litigation matter, Bergman Dacey Goldsmith advised the seller of a major metal fabrication company on how to structure and avoid environmental liabilities associated with the sale of the company. Also, when a non-profit corporation that specializes in real estate loans for public interest projects discovered that the borrower was diverting funds away from the project, Bergman Dacey Goldsmith was brought in to determine how best to protect the rights of the non-profit corporation. After intense negotiations, the borrower realized that it was best to execute a deed in lieu of foreclosure in favor of the lender.

    CONSTRUCTION AND PUBLIC WORKS LITIGATION

    1. A private client retained Bergman Dacey Goldsmith to provide her with legal counsel for a high-end construction/remodeling project that had left the client’s project in shambles. The general contractor filed suit against Bergman Dacey Goldsmith’s client for breach of contract and foreclosure of its mechanic’s lien for alleged unpaid invoices it claimed were due and owing pursuant to its work on the project. With an experienced construction consultant on Bergman Dacey Goldsmith’s side, our attorneys performed an in-depth analysis of the as-built conditions, the project’s contract, and the plans/specification documents. It was clear the general contractor had performed deficient and unacceptable work. Therefore, Bergman Dacey Goldsmith took an aggressive stance and formulated a demand as to work that needed to be corrected and back-charged against the general contractor. Heated litigation ensued. Bergman Dacey Goldsmith’s seasoned construction attorneys negotiated a favorable “walk away” settlement after a full-day mediation, saving substantial litigation expense.
    2. Bergman Dacey Goldsmith represented a Southern California school district in litigation involving an engineering firm’s claims against the district for unpaid invoices pursuant to multiple public works contracts. Bergman Dacey Goldsmith’s attorneys, along with the district’s representatives, engaged in a comprehensive forensic analysis of the engineering firm’s claims and concluded that unsubstantiated invoices were submitted to the district for payment for multiple projects dating back many years. The engineering firm was seeking hundreds of thousands of dollars from the district. These claims, along with the district’s claims for damages, were addressed during informal settlement meetings and mediation proceedings. A favorable settlement was achieved for the district at a fraction of the engineering firm’s original claims.

    TORT LITIGATION

    Bergman Dacey Goldsmith filed and litigated an action on behalf of a retired professional golfer related to injuries he sustained in an accident. Bergman Dacey Goldsmith quickly gathered all the pertinent documents to support the damages suffered by its client and presented them in a compelling manner to the other side. Bergman Dacey Goldsmith’s direct and open approach illustrated to the other side the strength of its claims and its commitment to take this matter to trial. Bergman Dacey Goldsmith resolved the matter for the insurance policy limit months before trial was scheduled to commence.

    LABOR AND EMPLOYMENT LITIGATION

    1. Bergman Dacey Goldsmith represented an established family run restaurant and its owners in a lawsuit by a former employee who alleged discrimination, harassment, retaliation, and wrongful termination. Immediately after taking on the case, Bergman Dacey Goldsmith quickly interviewed all the relevant witnesses and presented the other side with a summary of future witness testimony that rebutted all the allegations set forth in the complaint. Bergman Dacey Goldsmith thereafter evaluated the merit of the claims, the potential expense of litigation, and the potential disruption to the restaurant’s business and was able to negotiate a settlement, the value of which was 30% of the former employee’s original demand.
    2. Bergman Dacey Goldsmith represented an international technology company before the California Labor Commission when a former employee claimed unpaid commissions. At the hearing, Bergman Dacey Goldsmith was able to present documentary and live testimony to refute the facts claimed. Based on our firm’s superior knowledge of the Labor Code and its application, the Labor Commissioner decided in our client’s favor, and awarded nothing to the claimant.
    3. Bergman Dacey Goldsmith represented a southern California City and one of its employees in an action brought by another current employee alleging wrongful denial of a promotion, retaliation, discrimination, and sexual harassment. With the consent of the defendants, Bergman Dacey Goldsmith represented both the City and the defendant employee in the action. Bergman Dacey Goldsmith conducted a thorough investigation into the employee’s claims, including an extensive document review and numerous witness interviews. Bergman Dacey Goldsmith’s preparation proved invaluable at mediation and allowed Bergman Dacey Goldsmith to negotiate a settlement, the value of which was not only a fraction of the initial demand but also allowed both employees to remain employed by the City.
  • Recent Results (November 2011)

    Posted November 2, 2011 By in Recent Results With | No Comments

    The results mentioned are representative and do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

    FACILITIES AND CONSTRUCTION

    • Bergman Dacey Goldsmith represented a community college district in a multi-million dollar construction defect action related to the District’s new learning resource center (“LRC”). The District claimed that the prime glazing contractor and its subcontractors had constructed a building that suffered from numerous defects, including that the building was not weather-tight. In turn, the prime contractor alleged that the District owed the contractor over one million dollars for unpaid extra work claims. After aggressively pursuing the case in court, and engaging in multiple mediation sessions, Bergman Dacey Goldsmith successfully settled the action with all the defendants before trial. The District recovered 100% of its costs to repair the LRC, as well as a substantial portion of its attorneys’ fees. Further, the glazing contractor received nothing by way of its cross-claim.
    • Bergman Dacey Goldsmith’s school district client contracted to build gymnasiums at four of its middle schools. The gyms were constructed with vinyl sports flooring laid over a concrete slab. Soon after the gyms opened, the floors failed, as a result of moisture intrusion, and several repair efforts were unsuccessful. The school district hired attorneys who filed suit against the construction manager, the concrete contractor, the flooring contractor and its subs, and the manufacturer of materials used to seal the concrete slab. After two years of litigation and mediation produced no satisfactory settlement proposals, the school district discharged its attorneys and retained Bergman Dacey Goldsmith to take over the case. Bergman Dacey Goldsmith developed and carried out a strategy to fully prepare the case for trial while simultaneously engaging in mediation with the construction manager, the responsible trade contractors, and the manufacturer of materials used to seal the concrete. After years of litigation and more than a dozen mediation sessions, Bergman Dacey Goldsmith negotiated a series of cash settlements with the responsible parties. These settlements, when added to earlier settlements with contractors responsible for other problems in the gyms, enabled the district to achieve a total recovery of more than four million dollars. This amount will enable the district to fix the flooring problems and recoup a significant portion of the attorneys’ fees incurred in the litigation.
    • In consolidated actions by several contractors arising from a construction project where a defaulting owner and its construction lender failed to pay the contractors for work performed (including Bergman Dacey Goldsmith’s clients – the prime contractor and general contractor on the project), Bergman Dacey Goldsmith took the “lead” on the cases and convinced the presiding judge to bifurcate the actions to try certain legal issues first. This approach limited litigation costs and, among other things, through persuasive motion work, was able to convince the construction lender to settle all of the claims, not only as to Bergman Dacey Goldsmith’s clients, but also as to all of the other claimants on the project, resulting in a successful resolution of the actions with controlled litigation fees and costs.
    • Bergman Dacey Goldsmith represented a school district in related actions brought against two firms contracted to provide architectural services and project management services for a public works modernization and relocation project under a bond construction program. The project’s general contractor brought an action against the District that resulted in a monetary judgment against the District. The dispute between the firms and the District related to the parties’ respective responsibilities for the losses suffered by the District in the underlying action. The District sought to recover its losses from both firms under indemnity and other legal theories. Through mediation with the firms and their respective insurance carriers, Bergman Dacey Goldsmith negotiated a substantial monetary recovery with both firms and non-monetary items from the architectural firm. This resolution resulted in significant savings by avoiding the expense of trial preparation and two trials.
    • Bergman Dacey Goldsmith represented a southern California city in an action involving a subcontractor which alleged breach of contract and payment bond claims against a prime contractor involving a California public works construction project. After a thorough analysis of the claims alleged against the client, Bergman Dacey Goldsmith negotiated a favorable settlement, which ultimately resulted in a dismissal of the entire action, with prejudice, as to all parties and causes of action. Bergman Dacey Goldsmith’s expertise and litigation strategy employed in this matter resulted in the client being dismissed without having to contribute any monetary amount to the settlement of the case.
    • Promptly following the filing of a direct and forceful pleading against the responsible parties that damaged our public entity client’s property, Bergman Dacey Goldsmith immediately initiated negotiations with the party defendants and was able to secure a favorable settlement for our client, prior to any party defendant needing to file any responsive pleading to our client’s action. As a result of Bergman Dacey Goldsmith, Inc’s strong and disciplined negotiation strategy, our client recovered monetary damages without incurring any significant litigation expenses.
    • Bergman Dacey Goldsmith represented a southern California city in an action brought by a local business alleging various Constitutional and tort claims as a result of purported business-related damages arising out of a public works project to replace and resurface a major thoroughfare adjacent to this business. After investigating the claims and confirming that California law strongly protects public entities against suits of this nature, Bergman Dacey Goldsmith negotiated a discovery moratorium so that the parties could attend mediation before incurring additional litigation fees and costs. The combined effect of Bergman Dacey Goldsmith, Inc’s expertise of the applicable law, combined with the mediator’s strong push on the business to settle, resulted in a resolution of the matter for under five percent of the business’ original damages claim, a number constituting a mere fraction of the fees and costs that would have been incurred by the City had this matter proceeded to trial.

    BUSINESS LITIGATION

    • Bergman Dacey Goldsmith defended a former majority shareholder and CEO of an IT staffing company in a majority shareholder breach of fiduciary duty lawsuit. The plaintiff claimed that the defendant had received excessive compensation from the company without making necessary disclosures to all shareholders. By alleging crossclaims against other individuals so that other parties would bear the burden of any settlement and by showing the weakness of plaintiff’s case through the discovery process, Bergman Dacey Goldsmith was able to settle the action for three percent of the plaintiff’s initial demand against our client.

    LABOR AND EMPLOYMENT

    • Bergman Dacey Goldsmith represented a City in a lawsuit arising out of the City’s Council’s decision to separate a City police officer from employment after it was found that the officer violated various provisions of the City’s General Orders governing officer conduct. The officer filed a petition for writ of mandate arguing that: (1) the City Council lacked jurisdiction to review the conclusions, findings, and recommendations of the City’s Civil Service Board of Review (“Board”); (2) the City Council improperly raised and decided a new charge of dishonesty in determining to separate the officer’s employment; and (3) the evidence did not support the finding of dishonesty against the officer. Through persuasive and cost-effective briefing and argument, Bergman Dacey Goldsmith successfully refuted each of these challenges and obtained a decision by the trial court upholding all of the City Council’s determinations, including the ultimate separation of the officer’s employment. In so doing, Bergman Dacey Goldsmith successfully defended the significant legal right of the City Council to review and control the conduct of the personnel who will comprise its police force and serve the public interests in its community.
    • Bergman Dacey Goldsmith represented a luxury transportation company in two separate lawsuits filed by former employees in an attempt to collect allegedly unpaid commissions. Bergman Dacey Goldsmith quickly obtained all relevant documents related to the claims, evaluated the merit of the claims, and was able to negotiate independent settlements for a fraction of the original claims, without the client incurring any significant legal expense.
    • Bergman Dacey Goldsmith represented a limited liability company in litigation brought by an employee who claimed his internal recruiter position was wrongfully eliminated when the company outsourced its recruiting. The employee’s complaint alleged race discrimination and failure to prevent race discrimination under FEHA, retaliation, wrongful termination in violation of public policy, and intentional infliction of emotion distress. By way of a motion for summary judgment, Bergman Dacey Goldsmith knocked out the two race discrimination causes of action. This matter was successfully resolved prior to trial at mediation for an amount approximately forty percent of the plaintiff’s settlement demand that was funded completely by our client’s insurance carrier.
    • Bergman Dacey Goldsmith represented a large manufacturer in litigation brought by an employee who claimed he was terminated because of his disability and in retaliation for his taking leave under the Family Medical Care Leave Act. Bergman Dacey Goldsmith successfully deposed plaintiff and conducted written discovery to obtain all the necessary facts to prepare a motion for summary judgment. Based on the facts and arguments it was including in its motion, Bergman & Dacey, Inc. negotiated a settlement for less than fifteen percent of the demand plaintiff made at mediation.

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