Gray•Duffy Obtains Dismissal for its Client in Construction Defect Lawsuit

February 2010


Patrick Roberts of Gray·Duffy’s Encino office obtained a dismissal on behalf of its pool contractor client in a significant construction defect action.


Sarmiento, et al. v. Catellus Residential

The plaintiff homeowners filed a construction defect action against the original developer of their property, along with the firm’s client – a pool contractor, for alleged defects on their property. The plaintiffs asserted that there was extensive cracking and heaving of the exterior improvement flatwork, as well as damage to the pool installed by the subcontractor. The plaintiffs originally prepared a cost of repair for all defects in an excess amount of $588,000. Of that sum, approximately $170,000 was related to removal and replacement of exterior improvements at the pool location. The plaintiffs asserted that there was a prior slope failure along the back edge of the residence, and that the various damaged components were negligently installed and constructed by the pool contractor so as not to be able to withstand the alleged earth movement which occurred.

The plaintiffs’ counsel asserted that the pool contractor was involved in all of the improvements recommended, coordinated, supervised and approved in the backyard to the detriment of the plaintiffs and for which reimbursement was being sought.

During the course of numerous negotiations and mediations, Mr. Roberts argued that the claims and defects asserted by the plaintiffs were unrelated to the precise scope of work of the pool contractor, as evidenced by the contract between the plaintiffs and the pool contractor.  Further, the plaintiffs’ assertion that the pool contractor had an obligation to supervise work performed by others was not an assertion made in good faith, nor in compliance with California law.

After several mediation sessions, the plaintiffs agreed to dismiss any and all claims against the firm’s client, the pool contractor, in exchange for a mere waiver of costs.  Accordingly, no settlement monies were paid on behalf of the pool contractor.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.