Helped Save a Sale (Buyer’s Side)
The client found a property that it really wanted. The initial due diligence, specifically a Phase I Environmental Site Assessment, revealed two potential sources of environmental impacts to soil and groundwater under the property. One potential source was an historic release of hazardous substances at the property. The other was an upgradient federal Superfund site. These issues presented amorphous risk to the client/buyer, and therefore jeopardized the sale. The client/buyer did not want the sale to fall through. Rather, it wanted the property, but needed to better understand the scope, magnitude, and nature of any risk the purchase presented. And, of course, the client/buyer wanted to minimize this risk, to the extent reasonably possible.
Summer conducted a supplemental due diligence investigation of both the Superfund site and the on-site release. This included a deep records review and interviews with various regulatory and municipal entities. Through this investigation, she was able to determine that the upgradient Superfund site presented little risk to the client/buyer. As to the historic on-site release, Summer developed a comprehensive articulation of the risk it presented, then crafted a strategy to minimize and encapsulate that risk. She then worked with the seller and the regulatory agencies to implement that strategy. In the end, the client/buyer had enough knowledge to understand the risk, which allowed it to properly evaluate the pros and cons of completing the purchase. Summer also fortified the client/buyer's position by implementing certain risk-management steps, and this gave the client/buyer comfort and security that any remaining risk was reasonably controlled. The sale went through, just as the client wanted.
Helped Save a Sale (Seller’s side)
The client had a piece of real property that wanted to sell. The client/seller knew that the property's history included at least one release of hazardous substances. The client/seller was concerned that impacts from this release remained, and that either the impacts themselves, or the stigma associated with the historic release, would significantly depress the sale price or kill any sale altogether. The seller/client was convinced that, in order to get full market value for the property, i.e., as if it were "clean," it would have to either clean up the property or commence litigation against the responsible parties.
On behalf of the client, and prior to running up significant legal fees, Summer engaged an environmental consultant to assess the potential issue. The consultant determined that there were nominal impacts from the known historic releases, but also identified impacts from another source. The client was now convinced that a sale was impossible and the property was worthless. Summer had a different take on the situation and, based on her evaluation of the consultant's report, developed a strategy that did not involve litigation, a reduction in the sale price, or any other concessions from the seller/client. The (very skeptical) client followed Summer’s counsel and client received multiple bids for the property—all over asking. The sale went through without a hitch.
Handled a Federal Superfund Case
The United States Environmental Protection Agency (EPA) alleged that the client was a potentially responsible party (PRP) in relation to a Federal Superfund site anticipated to cost over $70,000,000 to remediate. Because of this, the client was sued in Federal Court under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as “the Superfund law”) by many entities that EPA also asserted were PRPs.
Summer represented the client in the litigation, while simultaneously--and successfully--negotiating a settlement with the Plaintiffs and the federal government (the United States Environmental Protection Agency and the United States Department of Justice). By settling in this manner, and relatively early in the litigation, the client was able to both obtain protection from claims by other PRPs (“contribution protection”) and avoid the cost, expense, and emotional toil of protracted litigation.
Litigation of a Trespass and Nuisance Case Related to Groundwater Contamination
A downgradient neighbor brought a trespass and nuisance action against the client, a successor-in-interest to a former tenant that had conducted a solvent recycling operation at the alleged source property. Plaintiff claimed that contamination from the predecessor's operations had found its way to the aquifer, where moved downgradient such that it was now under Plaintiff’s property. Plaintiff further alleged that this contamination was a trespass and nuisance that resulted in a significant reduction in the value of Plaintiff's property. The plaintiff was seeking this reduction in value via the litigation.
Summer handled all aspects of the litigation. She developed a strategy to defense the action, and, after conducting discovery, filed a Motion for Summary Judgment on Plaintiff’s permanent trespass and nuisance claims based on the statute of limitations. The motion was successful. That meant Plaintiff was barred from recovering the alleged diminution in the value of the property as a matter of law. Summer also served the Plaintiff with a written offer under Code of Civil Procedure § 998, which had the potential to shift the cost of the client’s experts to the Plaintiff. Faced with the prospect of a long, highly technical, and expert-heavy trial in a case in that no longer had a viable claim for damages, and that risked significant exposure for the client’s expert witness' fees, Plaintiff accepted the settlement offer--for less than 2% of the original multi-million dollar demand.
Compliance with the California Environmental Quality Act (CEQA)
The client, group of parties collectively remediating a California Superfund site, needed to comply with the California Environmental Quality Act (CEQA) in preparation for and during (1) emergency work at the site, (2) an Interim Removal Measure, and (3) the final remedy.
Summer worked with the client and its consultants, as well as the lead agency and its consultant, to determine and develop the documents required by CEQA. As a result, the emergency work was conducted under the emergency exemption, the Interim Removal Measure was conducted under a Mitigated Negative Declaration (MND), and the Environmental Impact Report (EIR) for the final remedy was certified and unchallenged.
Litigation of an Easement Dispute
A small private school client had granted a City an easement to construct a bike path over part of the school's property. Due to certain events, the school decided to terminate the agreement pursuant to provisions in the easement agreement. The City objected to the school’s interpretation of the easement agreement, and indicated it would proceed with construction of the path despite the school’s termination.
Summer obtained a Temporary Restraining Order and filed papers for a Permanent Injunction. Summer then represented the client/school in mediation where an agreement was reached that eliminated the need for further litigation.
Contractual Risk Management and Contract Negotiation
The issue (generally):
Whether on the contractor's side or the owner's side, the key issue is almost always risk allocation. On all sides, the goal is to craft an agreement that protects the client and that the other side will sign.
Summer drafts and/or reviews a proposed contract, then counsels the client on how it allocates risk. If appropriate, she offers suggestions and alternatives for allocating risk more equitably for the client. Then she negotiates changes to the agreement to make it consistent with the client's needs, desires, risk management policy, and risk tolerance. Recent examples include the following:
- Negotiated, on behalf of the owner who planned to develop a large housing project on environmentally impacted property, the contracts for the remediation project manager, the remediation contractor, and the environmental testing contractor. The work to be performed under these contracts was estimated to total more than $20,000,000.
- Prepared and negotiated, on behalf of the owner, the contract for the remediation of a California Superfund site (the work under this contract was estimated to cost approximately $17,000,000).
- Regularly negotiates, on behalf of contractors, contracts for smaller-scale construction projects, including refinery shut-down work. These contracts are typically worth a few thousand, to tens of thousands, to hundreds of thousands, of dollars per project/purchase order.
Obtained Support for an Adult Child
The disabled mother/client was unable to support her 24-year old son, who had severe learning and social disabilities. The father was financially able to provide support, but refused to do so because the child was over the age of 18.
Summer filed and prosecuted an action for child support under Family Code section 3819(a). After a trial, the court ordered the father to pay the mother/client over $800 a month in child support.
Obtained Dismissal of a Tortious Interference Claim
A bail bondsman brought a Tortious Interference with a Contract claim against the client, a supervisor at a company that provides millwright services. The bondsman claimed that he had entered into a bail bond contract with one of the supervisor’s employees. He further alleged that the supervisor knew about the arrest, the contract, and the bond, but nevertheless continued to give the employee work assignments. The Complaint went on to allege that, by giving the employee work, the supervisor had enabled, aided, and abetted the employee in skipping town and failing to appear at the arraignment--which cost the bondsman the entire $50,000 bond. The bondsman therefore sought the $50,000 bond amount from the supervisor.
Summer took an aggressive approach the litigation by filing motions on the pleadings that would limit the bondsman's potential recovery. But she also simultaneously cultivated a relationship with the bondsman. Although the Court's response to the initial motion practice was very favorable, it was the relationship Summer developed that ultimately resolved the case. The bondsman voluntarily dismissed the action saying that, “[the client] should thank [Summer] for the result because [she] wasn’t a jerk like so many other lawyers.”