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.

Office of Public School Construction Addresses Prohibition of Piggyback Contracting for Permanent Modular Buildings

By:Arne Sandberg, Alyse Nichols -

July 2021Number 17On July 7, 2021, the Office of Public School Construction (OPSC) issued a mass email to all California school districts and county offices of education reiterating that the Public Contract Code (PCC) does not allow a school district "to acquire factory-built modular building components via piggyback contracting." "Piggyback contracting" is a procurement method for "personal property" that allows a school district to avoid competitive bidding when another public agency has a...

Bid Thresholds Raised for 2021

By:Ruth Mendyk -

December 2020Number 85According 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 $96,700, effective January 1, 2021. The notice may be viewed here.The California Community Colleges Chancellor's Office is expected to announce a similar adj...

New Appellate Court Case Reaffirms that School District's Imposition of Developer Fees is Tied to the General Type of Construction, not the Particular Project

By:Harold Freiman, Peter Sumulong -

November 2020Number 82In a recent ruling, a California appellate court upheld a school district's imposition of developer fees on a residential project oriented towards college students, rejecting the developer's argument that the fees were improper because the project would allegedly generate no district students. (AMCAL Chico LLC v. Chico Unified School District (November 5, 2020) __ Cal.App.5th. _____ ). The Court borrowed heavily from the decision in Tanimura & Antle Fresh Foods, Inc....

Appellate Court Rules That a Challenge to a Lease-Leaseback Contract Is Moot due to Completion of the Project

By:Arne Sandberg, Alyse Nichols -

September 2020Number 69In a recent ruling, a California Appellate Court determined that a taxpayer’s reverse validation action alleging conflicts of interest in lease-leaseback agreements became moot upon completion of the project. (James D. McGee v. Torrance USD (2020) 49 Cal.App.5th 814.) However, this decision may lead to more immediate and aggressive litigation for public agencies defending reverse validation actions in the future.BackgroundIn 2013, taxpayer James D. McGee initiated...

Public Agencies Required to Maintain Emails Related to CEQA Determinations

By:David Wolfe, Nicholas Clair -

August 2020Number 65A recent court ruling reaffirms the expansiveness of administrative records required to be retained under the California Environmental Quality Act (CEQA). The decision in Golden Door Properties v. Superior Court of San Diego County, (June 30, 2020, D076605, D076924, D076993) __ Cal.App.5th __ , held that public agencies must retain all writings that are statutorily required to be included in the record of a CEQA challenge, including emails that would otherwise be subject t...

New Laws Will Impact Public Work Projects

By:Anne Collins, Peter Sumulong -

November 2019Number 65Governor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of "public works" for purposes of paying prevailing wage, regulating working hours, and securing worker's compensation.AB 456The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution pro...

Significant New Developer Fee Cases

By:Harold Freiman, Kelly Rem -

October 2019Number 44As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an "adults only" agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the ...

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.