Lozano Smith's Construction Advice and Litigation ("CAL") attorneys provide timely and cost-sensitive legal services related to public works construction projects of all kinds. We assist clients with project planning, contract language, and bid issues at the beginning of a project; project management and change orders during a project; and completion, payment, claims and litigation at project closeout. Our dispute resolution and litigation expertise spans all disputes, whether standard (extra work, delay and stop notice claims) or complex (contractor defaults, surety disputes and false claims). We have successfully represented clients in construction consultant disputes and construction defect litigation, as well.

Lozano Smith has advised and represented public entities in California on virtually all aspects of public works construction since the firm's inception in 1988. We adhere to a philosophy of helping our clients avoid costly delays and costs by proactively identifying and avoiding potential claims whenever possible, yet simultaneously protecting the District's interests and preparing for litigation in the event disputes cannot be resolved.

To learn more about the breadth of our construction expertise, please click on any of the following areas of expertise:

To facilitate the success of a project from its beginning, Lozano Smith coordinates with public agencies to ensure that project planning, financing, environmental review (CEQA) and delivery method selection comply with current and complex legal requirements. Every project is different, and our CAL attorneys can help your agency choose from the various project alternatives that exist to best meet project goals. Lozano Smith regularly advises clients about advantages and disadvantages of the delivery methods being considered by public agencies in California today.

Effective planning at the outset of a project, along with a thorough understanding of the associated legal, economic and political challenges, provides an agency with the best opportunity to deliver a project successfully without legal conflict at its conclusion.

Lozano Smith has special experience addressing issues unique to our school district clients. We often assist school districts with legal issues ranging from state funding to obtaining site approvals for new schools, helping them navigate the channels of the State Allocation Board, Office of Public School Construction and California Department of Education. Our CAL attorneys have expertise negotiating financing agreements with developers and helping school districts collect developer fees for new school construction. (To request your copy of our developer fee handbook, click here.) A select group of attorneys also serve as bond counsel to school districts.

After determining your delivery method, nothing is more critical to the success of your project than solid contracts to govern your relationships with your construction team members, including architects, engineers, construction managers, inspectors and contractors. Lozano Smith draws on its vast experience in reviewing and litigating contracts to develop contract documents for our clients that emphasize clarity and strong protection of our clients' rights. We draft contracts to help maximize the chances of finishing the project on time and on budget, while protecting the public agency owner from frivolous claims. In addition to review of a public agency's current documents, we also offer sets of form contracts and related documents ready for a public agency's immediate use. These sets are updated annually to reflect changes in the law and the industry.

During the bidding stage, our CAL attorneys have assisted public agencies with pre-qualification procedures, bid protests relating to bid responsiveness and contractor responsibility, and bid withdrawals. Despite other delivery methods that may be available, competitive bidding remains the predominate method of awarding local public agency contracts in California. Lozano Smith's wealth of experience with competitive bidding guarantees that our clients receive quick and accurate advice when issues arise.

Lozano Smith collaborates with public agencies, and their construction professionals to provide sound legal advice when a dispute arises during a project. By understanding the key factors of each dispute, our attorneys can efficiently advise clients on the immediate legal issues at hand, while at the same time preserving rights and evidence for later claims. We believe that open lines of communication between all members of the construction team and maintenance of good working relationships with contractors and consultants, while simultaneously protecting our client's interests, can help prevent expensive litigation at the end of the project and help ensure timely completion of the project.

Our CAL attorneys have handled disputes with contractors, subcontractors, construction managers, sureties, architects and engineers during projects. For those occasions when contractors refuse to perform work, we have significant experience helping agencies get the project back on track - usually by convincing the contractors to return to work, but if necessary by terminating the contractor and finishing the project with the surety or others. We also have experience in handling contractor defaults and bankruptcies, and we can get your project out of the bankruptcy court as quickly as possible. Our mission is to do everything possible to permit our client to complete its project as quickly as reasonably possible, thus minimizing the claims remaining for resolution after completion.

For completion of the work and final payment, as well as stop notices, our CAL attorneys help public agencies negotiate the maze of statutory requirements to avoid late payment penalties and other pitfalls. We advise public agencies on the delicate matters of withholding payments to protect an agency's interests, while not jeopardizing expeditious completion of the project.

At the end of a project, public agencies typically look to our firm to help resolve any remaining disputes and claims as quickly as possible, but on reasonable and acceptable terms. Lozano Smith assists public agencies in meeting this goal by guiding them during a project toward a position of strength for closeout negotiations. For these negotiations, we evaluate our clients' options, the relative merit of the claims, and the cost of litigation, in order to develop a dispute resolution plan tailored to our clients' goals.

We also understand the unique challenges facing our school district clients that can prevent timely completion of a project or jeopardize state financing. We are experienced in working with construction professionals to ensure that each project receives Division of State Architect close-out. Furthermore, our attorneys have advised countless school districts on post-construction Office of Public School Construction audits to ensure that State Funding is not revoked after the project is completed.

Few industries rely as heavily on Alternative Dispute Resolution as the construction industry does. Lozano Smith leads the way with extensive ADR experience during construction, closeout, and litigation. Our CAL attorneys have mediated hundreds of disputes and claims - not only after closeout, but even during construction in an effort to keep the project on track. Even if no settlement is reached, our attorneys will learn more about the other party's positions that will help litigation strategy and later ADR efforts. In addition, we have arbitrated many disputes in an effort to quickly and less expensively resolve disputes with finality.

If your goals include minimizing legal expense, let our CAL attorneys explore the possibilities of ADR with you and your agency.

Lawmakers Extend Deadline for Proposition 39 Energy Efficiency Funding and Create New Program

By:Devon Lincoln -

July 2017 Number 42 State lawmakers have extended the deadlines to apply for and encumber money dedicated to energy efficiency projects at schools and community colleges - the program known as Proposition 39 - and have created a new program to fund such projects indefinitely. Proposition 39 was scheduled to sunset June 30, 2018. Now, Senate Bill (SB) 110 has extended the deadline for encumbering Proposition 39 funds by one year, to June 30, 2019. At the same time, the bill creates the ...

Public Agencies No Longer Required to Contract with DIR Registered Contractors for Small Projects

By:Anne Collins, Nicholas Clair -

July 2017 Number 38 Senate Bill (SB) 96, passed this June as part of the California state budget, contains provisions designed to encourage more contractors to participate on small public works projects. Public works projects under $25,000 and maintenance projects under $15,000 are now exempt from the requirements of the Department of Industrial Relations (DIR) registration program. The new law also permits contractors to register for up to three years in advance and imposes new penalt...

Appeals Court Says Bidding Not Required for Lease-Leaseback Contract

By:Harold Freiman, Travis Cochran -

May 2017 Number 23 Another California appellate court has ruled that a lease-leaseback (LLB) contract made without competitive bidding is legally enforceable. In California Taxpayers Action Network v. Taber Construction, Inc. et al. (May 2, 2017, No. A145078) [nonpub. opn.] (Taber), the First District Court of Appeal agreed withMcGee v. Balfour Beatty Construction, LLC (2016) 247 Cal.App.4th 235, finding that competitive bidding is not required for an LLB contract. Although the appella...

Governor Signs Bill Limiting Design Professionals' Duty to Indemnify Against Liability

By:Devon Lincoln, Jennifer Grant -

May 2017 Number 24 The law regarding what obligations a design professional may assume to defend and indemnify a client against liability has been amended once again, and the resulting changes will affect the terms that can be included in design professionals' contracts. On April 28, 2017, Governor Jerry Brown signed into law Senate Bill (SB) 496, which partially limits the duty of design professionals to defend and indemnify a client against liability for claims arising from a design pro...

School District Bid Threshold Raised for 2017

By:Devon Lincoln -

December 2016 Number 88 According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts' purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $88,300, effective January 1, 2017. This represents an increase of 0.626 percent over the 2016 bid limit. The notice may be viewed here. The Califor...

New Claims Resolution Process Will Apply to All Public Contracts Effective January 1, 2017

By:Devon Lincoln, Kelly Rem -

October 2016 Number 83 Effective January 1, 2017, a new claims resolution process will be required for all public works projects. On September 29, 2016, Governor Jerry Brown approved Assembly Bill (AB) 626, which adds section 9204 to the Public Contract Code. The law is aimed at assisting contractors in enforcing claims against public agencies. Currently, the law requires public agencies to follow a certain claims process for claims that are $375,000 or less. Section 9204 will apply to all c...

Legislature Imposes New Procedures for Selection of Lease-Leaseback Contractors

By:Devon Lincoln, Arne Sandberg -

September 2016 Number 63 Scrutiny regarding school districts' use of lease-leaseback (LLB) construction contracts has prompted the Legislature to impose additional contracting requirements that will make the use of LLB more complicated, and will limit a school district's discretion in selecting the LLB contractor. Assembly Bill (AB) 2316, which the Governor signed on September 23, 2016, will require school districts to use a comprehensive "best value" selection process for LLB contractors. A...

Representative Cases

Oak Grove Elementary School District v. George W. Putris, as Tax Collector for the County of Santa Clara, Santa Clara County Superior Court Case No. 114CV261473. Represented the District in a complex matter related to a parcel tax authorized by the District's Board and approved by voters in 1991. The District returned to the voters every four years to re-obtain approval to increase the appropriations limit to spend tax revenues, but uncertainty loomed in 2014 regarding whether the District still had authority to collect taxes in 2014 after not needing to increase the annual appropriations limit that same year. The County Tax Collector was unclear whether it still had the authority to collect the taxes, therefore leading to Lozano Smith filing a lawsuit on behalf of the District seeking a peremptory writ of mandate commanding the County Tax Collector to collect parcel taxes. The lawsuit resulted in a stipulated judgment issuing a peremptory writ of mandate commanding the Tax Collector to collect the parcel tax.
Huntington Beach City School District v. Hardy & Harper et al., Orange County Superior Court, Case No. 05CC03340. Prosecuted claims on behalf of school district against general contractor, contactor’s surety, architect and design engineer arising from defective construction of a kindergarten playground. Case settled through negotiations. *Case handled by a current Lozano Smith attorney prior to their employment at Lozano Smith.
Lewis Jorge Construction v. Los Angeles Unified School District. Prosecuted and defended competing multi-million dollar contract claims arising from the building of the Queen Ann Elementary School project. Contractor brought extra work, differing site conditions and delay/impact claims. Conducted law and motion and deposed dozens of percipient and expert witnesses. Matter settled through mediation before trial. *Case handled by a current Lozano Smith attorney prior to their employment at Lozano Smith.
Morgan Hill Unified School District v. Minter & Fahy Construction Company, Inc. et al., Santa Clara County Superior Court, Case No. CV772368 (2002-2003). As part of a three week jury trial, successfully represented the school district against contractor and pipe manufacturer arising from underground fuel storage tank that leaked, and obtained judgment in excess of $2 million including interest and attorney’s fees.
Modtech Holdings v. Pajaro Valley Unified School District. On two separate elementary school projects totaling $4 million, the District withheld substantial sums to cover damages caused the contractor. One project under the control of the contractor had a fire, with the contractor refusing to compensate the District. The other project suffered construction deficiencies in the stucco and roof. The contractor sued for improper withholding and the District cross-complained for additional damages, resulting in a $1 million dispute. After discovery and expert investigation revealed additional claims for the District, the case resolved very favorably for the District a few months short of trial.
R. Baker, Inc. v. Coast Unified School District. A school district was subject to multi-million dollar design, delay and defect claims related to construction of a new elementary school located in the Coastal Zone. The project also suffered from an inadequate Storm Water Pollution Prevention Plan (SWPPP), thus causing the school district to be fined in excess of $300,000. The litigation settled favorably for the District at mediation.
Mountain Cascade v. Santa Clara Valley Water District. The District entered a contract with the plaintiff to install a recycled water pipeline. As part of the original plans and specifications, the contract also called for the additional installation of fiber optic conduits. However, after award the District deleted the fiber optic work from the project since the bid on that line item was excessive. The District then added back a small portion of the fiber optic work that was within the budget. The contractor sued the District for lost profits based on the deleted work. Our attorney won summary judgment for the District based on the broad right to add and delete work, and successfully defended the decision on appeal.
Pajaro Valley USD v. Westchester Surplus Lines Insurance Co., et al. Due to a combination of construction and architectural roof design defects, a new district school was infected with mold throughout its buildings. Lozano Smith attorneys successfully represented the school district in recovering in excess of $3 million for remedial efforts and new construction from litigation prosecuted against the general contractor, architect, and insurer on the district insurance risk policy.
Teichert Construction v. City of Stockton, et al. During a $15 million dual grade separation project, the contractor and one of its subcontractors submitted claims of more than $3 million based on delay. Despite many issues of delay caused by utilities and railroad companies, the case settled favorably at pre-discovery mediation for under $1 million despite a significant number of delay days for which the City had to take responsibility.
City of La Puente v. Pert Construction, et al. Recovered in excess of $2.6 million on a construction defect and design case in Los Angeles Superior Court where the contractor’s failure to adequately waterproof a pre-existing structure during construction resulted in extensive water infiltration and damage. *Case handled by a current Lozano Smith attorney prior to their employment at Lozano Smith.