We recently obtained a favorable defense arbitration award in the amount of $98,299.69 where claimants were claiming over $3.7 million at the time of the arbitration. The arbitration took place over a six-day period before the Hon. Stephen J. Sundvold (Ret.) at JAMS in Los Angeles. After post-arbitration motions, the award was further reduced to $92,604.69.

The matter involved the sale of a single-family home which had been remodeled by our client and then sold to the Claimants. Claimants alleged a number of causes of action including breach of the purchase agreement, breach of agreement to build a guest house, fraud, bodily injury (carbon monoxide poisoning), and negligent construction alleging numerous construction defects throughout the home and the swimming pool, including geotechnical and structural claims.

Carlyle Samatas vs. Nile Niami

James P. Souza [Defense Trial Verdict]

Attorney James P. Souza of Kennedy & Souza recently completed a three and a half month trial to verdict winning three non-suits, obtaining a defense verdict, and over $105,000 in costs. The lawsuit was tried before the Honorable Victor Chavez in Department 96 (Long Cause) of Los Angeles Superior Court and was styled Samatas, Carlyle, et al v. Niami, Nile, et al. Plaintiffs were the purchasers of an $8.25 million dollar home located in a prestigious neighborhood in the Hollywood Hills and alleged fraud, misrepresentation, and various construction defects regarding the development, design, and construction of the home.

Mr. Souza was counsel for Flexi-Tech, a general contractor which had entered into multiple subcontracts. Plaintiffs alleged that all of the geotechnical, civil, and construction work related to the pool needed to be removed and replaced at a cost of in excess of $2 million dollars. Flexi-Tech settled with its subcontractors collecting significant money, agreed to hold its subcontractors harmless, and tried the case to verdict.

After week thirteen of the trial, Plaintiffs rested and Mr. Souza won three non-suit motions based on no resulting damage, failure to provide notice, and as a result of having critical evidence and expert testimony struck from the record during Plaintiffs’ case. Flexi-Tech remained in the case subject to the Developer’s cross-complaint and was ultimately allocated no responsibility for any of the construction defects by the jury (DEFENSE VERDICT!) In addition to significant settlement contributions from its subcontractors, Flexi-Tech was awarded $105,723 in costs.

Nicholas Hedges vs. Randy C. Manning and Helen R. Manning

Kevin P. Kennedy (Defendants) [Defense Verdict]

In this matter, Plaintiff alleged that he was injured in a fall that he contends occurred after Defendants’ dog lunged at him and pushed him to the ground using his paws.  Plaintiff was represented by Eric B. Freedus with the Law Offices of Eric Freedus. Kennedy & Souza was retained to represent both Defendants in this case.

Plaintiff, a licensed engineer, alleged injuries to his wrist arising out of a fall allegedly caused by Defendant’s dog.  Prior to trial, an offer of $5,000 was communicated to Plaintiff by way of CCP Section 998, Statutory Offer.  This Offer was rejected by Plaintiff.

This matter proceeded to trial wherein Plaintiff requested approximately $450,000 for both special and general damages arising out of this alleged incident.  It was Defendants’ position that the subject dog never attacked Plaintiff and that the fall was as a result of Plaintiff tripping and falling while jogging.

The jury returned a verdict in favor of Defendants and Defendants were awarded costs in the approximate amount of $7,600.

Ashburn, et al. v. Brookfield Homes, et al.


This case involved 71 single family homes located and venued in San Diego. Plaintiffs’ were represented by Fred Adelman, Esq. and Michael Fairchild, Esq. of Milstein, Adelman & Kreger. Developer was represented by Shawn Morris, Esq. of Morris & Sullivan. Kennedy & Souza was retained to represent Just-Star Construction, a masonry block wall subcontractor.

As part of our initial investigation, the paralegal working on the file noted that masonry block wall issues were only being alleged at one of the homes worked on by Just-Star Construction and the Plaintiffs’ fully burdened cost of repair was $1,000. Attorney James Souza of Kennedy and Souza contacted Mr. Morris and informed him of this fact and requested a walk away demand. Mr. Morris stated he had an AI from Just-Star’s carrier and “Just-Star would be in the litigation for the long haul.”

Mr. Souza then called Mr. Adelman and negotiated an Issue Release for all homes worked on by Just-Star related to masonry block walls. Mr. Adelman was willing to provide the Issue Release on the condition that Just-Star stipulate to re-enter the litigation should further discovery reveal a basis for liability against Just-Star. Securing the Issue Release from Plaintiffs allowed Mr. Morris to recommend to his client to settle with Just-Star for $1,500. We note that every single attorney at Kennedy & Souza have negotiated similar settlements on behalf of “nuisance value and/or no exposure” subcontractors. In many instances we have been successful in obtaining Dismissals without prejudice for a waiver of fees and costs on the condition that we stipulate to re-enter the case should further discovery reveal a basis for liability against our clients. To date we have not had to reaccept service on behalf of a single client.

Jose Rodriguez v. Sontina Clark Rose

Kevin P. Kennedy (Defendant, Sontina Clark Rose); [Defense Verdict]

This case involves an allegation that Plaintiff, while backing up out of a parking stall struck Plaintiff/pedestrian as he was walking behind her vehicle.  Plaintiff, Jose Rodriguez was represented by Jodi L. Doucette with Bohdan & Doucette, LLP.  Kennedy & Souza was retained to represent Defendant, Sontina Clark Rose in this matter.

With Defendants’ policy limits being $100,000/$300,000, Plaintiff made an immediate demand of the policy limit in the amount of $100,000 in light of the fact that Plaintiff incurred approximately $59,000 in emergency bills on the day of the subject incident.  Both liability and damages were at issue in this matter.  Specifically, Defendant contends that Plaintiff failed to pay adequate attention to vehicles backing up while he was walking through a busy parking lot.  With respect to Plaintiff’s alleged injuries, it was Defendant’s position that Plaintiff, at the very least exaggerated the nature and extent of injuries sustained in this alleged incident.

During the course of discovery defense obtained subrosa on Plaintiff which revealed his ability to lift heavy containers of paint and oil products from Home Depot which was later used to impeach him during trial.

The jury returned a defense verdict in favor of Ms. Rose and awarded costs to her in the amount of approximately $40,000.

Shahla Hendifar v. Noah Bohbot, et al.

Kevin P. Kennedy (Defendant, Noah Bohbot); [Settled prior to trial]

This case arose out of an incident that occurred in Los Angeles, California.  Plaintiff was represented by Brett Shainfeld and Jessica Anvar with Shainfeld & Anvar.  Kennedy & Souza was retained to represent Noah Bohbot in this matter.

Plaintiff alleges that following the rear-end collision she exited her vehicle and was accosted by Defendant as he pushed her to the ground.  She alleged knee injuries and potential future surgery.  Plaintiff communicated a demand prior to mediation in the amount of $594,000.  In response thereto, Defendant communicated an offer of $9,500 pursuant to CCP Section 998, Statutory Offer.

During the course of mediation, Plaintiff’s inconsistent deposition testimony was discussed, as well as the veracity of her version of the events leading up to the subject accident.  Following an all-day mediation, the matter resolved for $42,500.

Casoleil LP v. Wermers Corp., et al.

Kevin Kennedy (Subcontractor): [“AS IS – WHERE IS” DEFENSE]

Kevin Kennedy is currently handling this matter which involves a 346 unit apartment complex known as Casoleil Apartments located in San Diego, California. The project consists of 17 buildings including apartment buildings and stand alone garages. Our firm represents Signs & Pinnick, the mass grader on the project. Counsel for Plaintiff is represented by Antonia LoCocco, Esq. of Epsten, Grinnell & Howell and Developer is represented by Timothy Earl of Sullivan, Hill, Lewin, Rez and Engel. The matter is venued in the San Diego Superior Court and the presiding Judge is the Honorable Luis R. Vargas.

Counsel for Plaintiff is alleging a variety of construction deficiencies including, what they refer to as a “major concern” which is the alleged soil subsidence at the project. There are significant issues in this case relating to the culpability of various cross-trades including the soils engineer, civil engineer, geogrids (installed a large geogrid wall), mass grader, fine grader, Developer and landscaper. The Developer engaged in value engineering and directed the mass grader to perform grading pursuant to the civil and geotechnical engineers recommendations which is apparently causing soils subsidence.

The significant issue in this case is Plaintiff’s performance of due diligence prior to purchasing the property wherein all of these issues alleged in this case were addressed by experts hired on behalf of Plaintiff prior to purchasing the property. Our firm filed a dispositive motion alleging that the Plaintiff knew of the deficiencies and pursuant to the purchase agreement bought the property “as is-where is.”

Manhattan Construction Company v. Degussa Corporation

James Souza (Manufacturer): [MOTION TO STRIKE FRAUD CLAIMS]

This case stems from a prior Oklahoma State case were Manhattan Construction Company was hired as a general contractor to build a very expensive multi-story parking garage for a hospital. Manhattan employed design professionals and subcontractors including Cantra Construction Company (one of the largest concrete subcontractors in Oklahoma). After the garage was completed Manhattan filed a lawsuit against the project owner, Integris Baptist Medical Center, Inc. for approximately $1,500,000 which was withheld due to alleged problems with the garage. Those parties settled and dismissed their claims with prejudice. Manhattan and its subcontractor Cantra filed this action against Degussa Corporation, Degussa Building Systems, and Degussa Admixtures in Oklahoma State Court. Manhattan and Cantra allege that one of the products manufactured by Degussa Buildings Systems, Inc. was incompatible with another product manufactured by Degussa Admixtures and also alleged breach of warranties, express and implied, as well as, misrepresentation and deceit (actual or constructive).

The Degussa entities retained attorney James Souza, who appeared in the case pro hoc viche with the assistance of Oklahoma local counsel and removed the case from state court into federal court. Our firm brought a 12B6 Motion to Dismiss Plaintiff’s fraud cause of action and a Motion to Strike Plaintiff’s Prayer for Punitive Damages. The motion was granted in part and denied in part and Plaintiffs were given leave to amend their complaint. Plaintiffs amended the complaint and our firm filed another 12B6 Motion which is currently being considered by the court.

CDM Construction, Inc. v. Skyline Wesleyan Church, et al.


Kevin Kennedy was the supervising attorney on this matter which involved a suit filed on behalf of the firm’s client, CDM Construction, Inc. seeking payment by work they performed on and around the road improvements leading to the subject church. Skyline Wesleyan Church subsequently sued all of the contractors for all aspects of the project alleging various construction deficiencies. This matter was filed in the San Diego Superior Court with the Honorable Ronald Prager presiding. Counsel for Plaintiff, Skyline was represented by Richard D. Corona, Esq. of the Corona Law Firm. CDM, our firm’s client as a plaintiff was represented by David Kuhlman, Esq. of Procopio, Corey, Haggards & Savage. During the course of the litigation CDM decided to terminate the relationship with Procopio and hired Kennedy & Souza to pursue Plaintiff’s case and to defend the construction defect matter.

This matter was complex in that CDM, with respect to off-site improvements acted as a general contractor and our firm spearheaded a pursuit against the subcontracts requesting that the additional insured’s contribute toward CDM’s defense. Through the firm’s efforts a joint defense involving RiverStone, Zurich North American, GBA Claims-Ward North America, Inc., Investors Underwriting Managers, and EXL Insurance Global Risk all participated in the defense of CDM. This matter involved several parties, however, Kennedy & Souza took the laboring oar of performing certain discovery including subpoenaing computer hard drives and deposing key witnesses in order to force Skyline to resolve this matter. There were allegations of opposing counsel, Mr. Corona participating in fraudulent activity as a member of the church which was revealed during course of discovery. We further established that Skyline Church merely raised the allegations against various subcontractors in an effort to divert attention from CDM’s claim for reimbursement in an amount over $300,000. The ultimate result of this case was as follows:

1. We obtained $500,000 from Skyline on behalf of CDM; and

2. We settled the defect claim against CDM for $90,000 with a demand in excess of $1 million.

Regency Wilshire HOA v. Angelus Waterproofing, et al.

James Souza (Manufacturer): [THINKING OUTSIDE THE BOX]

This case involves an 18-story, 75-unit condominium development known as Regency Wilshire located at 1055 Wilshire Boulevard, Los Angeles, California. The HOA was represented by David Libo, Esq. and Kenneth Markson, Esq. with the law firm of Steiner & Libo. This is a well known law firm in Beverly Hills emphasizing in business and commercial litigation. Attorney James Souza of Kennedy & Souza represented the primary target in that case, BASF Building Systems which manufactured and warranted a multi-products system to waterproof the building. The HOA also sued several of the subcontractors involved in the remediation.

The HOA’s experts testified that due to excessive pin holing in products manufactured by BASF Building Systems, it would be necessary to completely re-waterproof the building at a cost of in excess of $3,000,000. Several foundational problems were developed during the expert depositions and further impeachment evidence was developed during the depositions of Board Member and Management Company depositions.

On the eve of trial a Mandatory Settlement Conference was held with the Honorable Joe W. Hilberman in Department K of the Western District Los Angeles Superior Court and Mediator Jeffrey Krivis of First Mediation Corporation (a high priced mediator employed by the parties after Mediator Ross Hart was unable to resolve the case). During the Settlement Conference BASF Building Systems Inc. maintained its $10,000 CCP Section 998 offer. The other parties in the case offered $850,000 to resolve the case. David Libo and the Board rejected the offer and stated the defendants needed to raise $1,500,000 or show up ready for trial.

Mr. Souza believed strongly that any jury verdict would be hundreds of thousands of dollars less than the $850,000 on the table and received authority from BASF representatives in Germany to accept the $850,000 offered and provide the other defendants with hold harmless agreements. Opposing counsel and the HOA learned that BASF intended to take the money and try the case. This forced the HOA to accept BASF’s $10,000 998 and the $850,000 which it had previously rejected from the remaining parties.

Kagan, et al. v. Kia & Kia, et al.

James Souza (Builder): [MOLD]

This litigation involved a single family home located in an old and exclusive neighborhood in Pacific Palisades consisting of primarily multi-million dollar homes. Inspection reports prepared in conjunction with the purchase of the property indicated that the homes had not been remodeled in many years and was in need of a significant amount of work. Kia & Kia was hired as a general contractor to perform what eventually amounted to $645,000 in remodeling and repairs.

Following the repairs the Kagans allegedly experienced headaches, fatigue, shortness of breathe, hives, allergies, cardiovascular, thyroid, and liver problems due to alleged toxic mold caused by alleged construction defects. Mr. Kagan hired attorney Brad Landon, Esq. to prosecute his claim. Mr. Landon was a member of the defense team that handled the Ed McMahon mold case. The case was filed in Department WEX with the Honorable Lisa Hartcole of the County of Los Angeles Superior Court in Beverly Hills. James Souza was retained on behalf of Kia & Kia answered Plaintiffs’ Complaint and Cross-Complained against 10 subcontractors. Although this was only a one home case, the amount of documentation and number of parties and experts justified having the case deemed complex and we negotiated a Case Management Order with opposing counsel. The primary issue in this case was understanding pre-remediation conditions and differentiating them from post-remediation conditions. There was conflicting documentation and testimony regarding remediation to windows, doors, grading, and landscaping which were related to the water intrusion issues. The case was further complicated by the fact that Mr. Kagan retained and directed several of the subcontractors himself.

Following homeowner and PMK depositions, approximately $200,000 was collectively offered to Plaintiffs and $1,500,000 was demanded. Plaintiffs’ expert depositions ensued and following Plaintiffs’ expert depositions another mediation was held. At this mediation, approximately $250,000 was offered to Plaintiffs and Plaintiffs increased their demand to $2,200,000. Developer expert and subcontractor expert depositions followed and a final Mandatory Settlement Conference was scheduled with Mediator Tom Krego. Mediator Krego agreed that the primary causes for water intrusion at the home and mold were related to several possible sources and that most of the sources were from pre-existing conditions and/or the responsibility of the subcontractors being directed by Mr. Kagan himself. The case resolved for $255,000 with a $50,000 contribution from Kia & Kia.

Urban Council Development v. Roel Construction


This case involved a 70 unit apartment complex located in San Diego. Plaintiffs were represented by Mitch Golub, Esq. Of Golub & Morales. Roel was represented by Robert Titus of Stutz, Artiano, Shinoff & Holtz. Attorney James Souza was hired by INSCORP one month before trial on behalf of Calescon, Inc., a drywall subcontractor. The case was venued in Department 63 of San Diego Superior Court before Judge Luis R. Vargas.

A final settlement conference was held with the Plaintiff, Developer, and six subcontractors remaining in the case. The demand to Calescon was $100,000 and an additional 1/6 share totaling $100,000 was being demanded of INSCORP pursuant to alleged additional insurance obligations. The case did not resolve and motions in limine were filed. Kennedy & Souza filed a motion in limine requesting the court find that the subcontract agreement between Calescon and Roel was a contract of adhesion and that the indemnity provision within the subcontract was unenforceable pursuant to the doctrine of unconscionability set forth in Scissor-Tail 28 Cal.3d 807. Reading the briefs, the Judge commented that Plaintiff’s cost of repair, allegedly attributable to Calescon, was less than $560. However, pursuant to the subcontract, Calescon could be held responsible for Plaintiff’s claimed attorneys fees of approximately $800,000. The Judge did not render an official ruling but stated he believed this would be harsh and clearly would fall into the category of “unintended potential consequences” which might lead the court to rule the subcontract to be unconscionable and unenforceable as applied to Calescon.

As Roel’s case against Calescon depended upon being awarded attorneys fees and costs, the case subsequently resolved for $10,000 including the additional insured obligations. It is significant to note the other six remaining subcontractors all paid in excess of $100,000 and the settlements were exclusive of additional insured obligations.

Tseng v. K. Hovnanian Companies of California, Inc.

Kevin Kennedy (Subcontractor): [EXPANSIVE SOILS]

This single family home soils case was supervised by Kevin Kennedy. Our firm’s client was a soils grading contractor, Signs & Pinnick, Inc. Plaintiff’s counsel was Christopher Hagen, Esq. of Ward & Hagen; Developer’s counsel was Tawnya Southern, Esq. of Wood, Smith, Henning & Berman. The case was assigned to the Honorable Luis R. Vargas in San Diego Superior Court. Of the Plaintiff’s total $550,000 cost to repair. $480,000 was for the repair of foundation and building damaged by expansive soils. The soils grader, our client, was a key target defendant. We successfully defeated a demurrer by the soils engineer, Geocon, to our Cross-Complaint in which they had asserted that lack of contractual privity defeated our client’s claims for equitable indemnity. Through selective depositions of soils engineer’s technicians and other witnesses, as well as, deposition of our client, we were able to establish that presence of highly expansive soil is not the responsibility of our client. After a $390,000 settlement demand on our client, we settled the case for $25,000.

Creel v. J. Walter Pavelak, et al.

James Souza (Subcontractor): [DEVELOPER NOT PROPERLY LICENSED]

This case involved 60 single family homes in Riverside built by John Walter Pavelak dba Century Homes Communities. Plaintiffs were represented by Andrew D. Weiss, Esq. formerly with the Kasdan Law Firm. The Developer was represented by Richard Glucksman, Esq. of Chapman, Glucksman & Dean. Attorney James Souza of Kennedy & Souza represented Royal Concrete which installed slabs and foundations at all 60 homes. The case was assigned to the Honorable Eric Michael Kaiser in Department 3 of the Riverside Superior Court.

The last demand from Plaintiffs prior to trial was $600,000. The last unofficial demand from the mediator was $120,000. The last offer made on behalf of Royal Concrete was $60,000. A C.C.P. Section 998 Offer on behalf of Royal Concrete was made in the amount of $30,000.

During pre-trial motions, Mr. Souza was successful in establishing that the Developer was not properly licensed and this facilitated and increased offer by the Developer which settled the case globally with the exception of Royal Concrete. Plaintiffs received an assignment of the Developer’s remaining claims for negligence and equitable indemnity. The Developer paid $87,733 related to the geotechnical/concrete issues. After picking a jury but before Plaintiffs’ opening statement, Royal Concrete’s C.C.P. Section 998 Offer in the amount of $30,000 was accepted.

Udin v. Pardee Construction

James Souza (Subcontractor): [EXTRAPOLATION]

Trial counsel on theis matter was James Souza. This was a construction defect action involving 50 single family homes in San Diego. Plaintiffs’ were represented by Bill Naumann and Ralph Peters of Naumann & Levine. Developer was represented by Bob Carlson of Koller, Nebeker, Carlson & Haluck. Kennedy & Souza was retained to represent Coffman Enterprise which performed lath and plaster work at all 50 homes. Attorney Rick Gloger was assigned the file and performed all work on the file up to trial when attorney James Souza took over to try the case.

On the eve of trial the Plaintiffs settled with Developer and all of the subcontractors with the exception of the framer, (window installer) Coffman Enterprises (stucco sub) and the window manufacturer. The last demand made to Coffman by Plaintiffs prior to trial was $150,000 ($3,000 per home for each of the 50 homes). The last offer made on behalf of Coffman Plastering was $50,000 (1,000 per home).

During a 402A hearing, Mr. Souza convinced the court, Judge Vargas in Department 63 in the San Diego Superior Court, that Plaintiffs’ experts lacked foundation to extrapolate repairs to 55% of the windows in the case. Judge Vargas ruled no evidence or argument could be offered by Plaintiffs to repair any of the subject windows which reduced Plaintiffs’ cost of repair related to issues implicating Coffman Enterprises from $400,000 to $180,000. The Judge asked for further briefing regarding whether or not Plaintiffs’ experts should be allowed to extrapolate at all. After receiving a copy of Coffman’s brief, Plaintiffs settled with Coffman Plastering for $50,000 contingent upon a Good Faith Determination which was contested by both the framer and window manufacturer. The Good Faith Motion was granted.