Hon. David C. Velasquez, Ret.

Construction Breach Of Contract

• Contractor's complaint for non-payment for construction of residence lead to cross-complaint for disgorgement of amounts paid by owner due to failure of contractor to be properly licensed and for defects in construction.

Construction Defects

• Multi-million dollar home suffers water intrusion after remodel. Number of parties (fifteen subcontractors, general contractor, and homeowner) added to complexity.
• Plaintiff alleged a host of construction defects suffered by its shopping mall, delay costs, and loss of rent well into the 8-figures. The case was over three years old by the time it was assigned of the mediator by the court pursuant to CCP Section 639. The initial challenge of the mediator was to salvage the prospects for settlement because the relationship between the plaintiff and the defendant had become toxic.
• In this general reference, complex construction defect case involving 11 parties, the owners of two luxury homes sued the developer/general contractor for a variety of structural defects and land failure. The developer/general contractor in turn sued its subcontractors.

Breach of Contract

• In this arbitration, a community college district sought declaratory relief of its obligation to pay on behalf of the retired employee of the district a life insurance policy for life as part of this employee's compensation package. In addition to the issue of contract formation and interpretation, the case also concerned the validity of the contract under the California Brown Act, Government Code sections 54950, et seq.

Discrimination

• Action by restaurant workers for damages for not providing meal and rest breaks, and failure to pay overtime pay, providing an inaccurate pay check stub, and waiting time penalties.
• FEHA wrongful termination, and disability discrimination suit where key issues included whether the employee notified the employer of his need for accommodation at the work site.

Labor Code

• Three-hundred member wage and hour class action alleging employer's failure to provide meal and rest breaks. Delivery drivers alleged that, although the dispatcher authorized lunch breaks, lunch was not authorized until after the fifth hour of work. Case settled for mid six-figures.

Wage and Hour

• Class of about 890 drivers sued for reimbursement of business expenses, mainly mileage, and failure to pay minimum wage when the drivers were on duty but waiting for an assignment ("down time").
• Over 4,000 newspaper delivery drivers alleged they were employees, rather than independent contractors, and demanded reimbursement of business expenses, meal and rest pay, and statutory penalties, among other claims.
• In mediation, several truck drivers alleged they were mis-classified as independent contractors instead of employees. Unusual about case is that the putative employer required the drivers to purchase their trucks through dealer and lender, and required insurance selected by the putative employer. Truck registered to driver. Loan was guaranteed by putative employer. If the driver missed payments, the putative employer could keep the loans current. Otherwise, trucks had all indecia of belonging to the putative employer.
• Wage and hour claim where the employee reported extensive and widespread history of Labor Code violations by the employer including failure to pay OT, time off the clock, meal and rest violations, failure to reimburse business expenses, failure to provide accurate check stubs, and more. Employer did not denied his conduct but claimed the plaintiff was an independent contractor.

Wage and Hour Class Action

• Wage and hour class action mediation wherein the class demanded compensation for meal and rest breaks, overtime, and reimbursement of business expenses for uniforms and cell phone use. Plaintiff alleged he and class members were threatened with deportation. Problem: the defendant is a small family-run restaurant. Case resolved as individual settlement.
• Wage and hour class action against finance institution seeking damages for failure to provide meal and rest breaks, PAGA penalties, and restitution under the UCL for the class of nonexempt underwriters. Case settled in seven figures for class exceeding 600 employees.

Whistleblower Wrongful Term

• A licensed engineer employed by a water treatment facility believes he has uncovered an illegal scheme to spike the wages of unqualified, unlicensed employees right before their estimated retirement dates to establish higher base retirement payments. The whistleblower reports his theory and is fired within one month of when he reports the scheme.

Wrongful Termination

• Action over interest in car dealership where the plaintiff claimed fraud in the inducement to enter into buy-out agreement. The defendant claimed the buy-out agreement was a valid accord and satisfaction of the dispute.
• Wrongful termination, and disability discrimination suit arising from the alleged failure by the employer to engage in the interactive process in an attempt to find a reasonable accommodation to permit the employee to maintain his job.
• In wrongful termination/discrimination case, the plaintiff employee was denied employer provided medical aid after he was injured on the job. Employer offered to pay the employee's medical bills under the table to avoid workers compensation filing. Termination followed after months of harassment. Problem for employee was lack of corroboration of his version of events. Case settled in mediation.
• In wrongful termination arbitration, the claimant sued for bonus she earned but was not paid, and for damages for wrongful termination. Bonus issue depended on interpretation of oral and written terms of the bonus agreement. Claimant also contended she was fired for demanding her bonus.
• In mediation, 61-year-old employee, an internal auditor, alleges wrongful termination as whistle-blower and age discrimination. Employee claims his supervisor pressured him not to submit the results of an internal investigation critical of the company which was required to be disclosed to the foreign equivalent of federal SEC. The employee filed his report anyway, and was terminated the following day. He was replaced by a young person. Settled in mediation.
• In arbitration, the employee alleged the employer wrongfully denied her wages, in the form of a bonus, and then wrongfully terminated her employment because she complained about it in violation of Labor Code sec. 1102.5.
• In this arbitration, former employee alleged that top level corporate officer made repeated sexually inappropriate remarks, and touched her legs, and breasts. Employer also asked employee to testify falsely against another employee in hearing where employer contested the second employee's unemployment benefits. The day after the employee complained on behalf of all employees about employer's failure to provide meal and rest breaks, she was fired. Employer operated as integrated enterprise among 7 separate commonly owned corporations, none of which separately had 50 or more employees.
• A surgeon from another state answered a job announcement on the internet for a position as a surgeon in a subspecialty in California, reached an agreement, and moved here. When he arrived, he was told for the first time the written offer was revoked because the surgeon had allegedly lied about negative information in his background. Instead, the surgeon was offered a junior position at a greatly reduced pay. As it turned out, the "head hunter" used by the employer to recruit doctors made a mistake about the surgeon's background. To complicate the case, the surgeon felt coerced to sign the second contract for the lesser position.
• The employer claimed the employee could not perform the essential functions of her employment because she had taken two earlier medical leaves, and was currently on her third leave. Employer speculated there would be more requests for leave even though the employee's doctor had given the employee a definite return date in the near future.

Bad Faith

• Plaintiff alleged the insurance company insuring his business systematically seeks to withhold policy benefits from its insureds.

Estates/Trusts

• Appointed by the court as discovery referee in a complex civil matter, the neutral is overseeing the discovery in a consolidated/coordinated matter which is 17 cases in one spread out over two counties, concerning allegations of breach of fiduciary duties by trustee of large family trust (valued in the "9-figures") and related entities, and related probate issues.

Probate

• Inter-sibling dispute over decedent's real property claimed to have been acquired prior to the decedent's death through fraud and undue influence by one of the siblings. Extreme ill will between the one sibling and the others.
• The beneficiaries of a family trust sued the Trustee, a sibling, for fraud and self-dealing. The salient time period of the events started 29 years before the case was filed, and required the examination of scores of financial transactions.

Medical Malpractice

• Wrongful death action arising out of alleged failure to provide dialysis leading to cardiac arrest. The decedent had long history of heart disease. Major issues concerned elements of standard of care, and whether alleged negligence caused the death.
• In an arbitration, the surviving family members alleged the treating hospital told the 76-year-old decedent dialysis was unavailable to her because the hospital did not staff for that procedure over weekends. The deceased was suffering end stage renal failure and required dialysis every third day. On the fourth day of hospitalization without dialysis, the deceased began the day showing elevated blood markers for renal failure, but was not given dialysis until late afternoon. The procedure became complicated when a clot developed in the tube leading to the dialysis machine. The decedent suffered cardiac arrest before the dialysis could be completed.

Professional Malpractice Legal

• Extremely wealthy family accuses attorney and trustee of the family trust of fraud, breach of fiduciary duty by overcharging his fees and self-dealing.
• Legal malpractice case involving allegations of injury caused by mold exposure to four plaintiffs in the "case within the case." Layered over that were allegations of breach of fiduciary duty based on conversion and other intentional torts.
• In arbitration on claim of wrongful eviction, homeowner sought to modify his mortgage. One department of the lender denied application for modification, but agreed to process request for short sale. In another one of lender's department, the foreclosure process continued even though the homeowner was told by bank that foreclosure would be stayed pending short sale. Homeowner even found able buyer to purchase the property at price greater than loan balance.

Breach Of Contract

• Prospective buyers of real estate learn only after escrow is opened that the seller, broker, and initial escrow company are allegedly owned by the same person. Buyers also claim seller allegedly failed to disclose architectural defects in the property. Buyers assert seller committed fraud and breached its fiduciary duty. Settled in mediation.
• In this mediation, the plaintiffs alleged the defendant violated the Homeowner Bill of Rights Act, Civil Code sections 2923.6 (dual tacking), and Civil Code section 2924.10 (lender's duty to keep homeowner informed). Plaintiffs alleged the lender failed to timely process plaintiffs' application for loan modification, while still proceeding with the foreclosure process; lender failed to comply with duty to advise borrowers of missing documents needed to process loan modification and deadlines to comply; and failed to advise of borrowers' right to appeal lender's denial of modification. Lender's notes reflected borrowers actually qualified for loan modification, but were not advised until after foreclosure sale.
• Arbitration involving demand by a prospective buyer for specific performance of purchase agreement of single-family home. The seller claims her broker (non-party) intentionally misled her about cancellation provisions in the contract. No grounds for cancellation were listed in the agreement. HELD: The broker did not commit fraud, Therefore, no grounds to cancel the contract.

Buy/Sell

• Dispute concerns interpretation of contingency clause in real estate purchase agreement. Could equitable considerations govern over express contingencies in the contract.

Home Owners Association

• Plaintiff seeks his attorneys' fees and expert costs incurred when the Home Owners Association unilaterally declared it intended to demolish a portion of the plaintiff's residential unit to fix a leak. When the plaintiff learned of the decision, he was forced to hire an attorney and several experts to investigate the HOA's concerns. The leak was never found.
• Action by individual home owner for damages against the Home Owners Association for water/moisture intruding into his residence through the slab from beneath his unit.

Real Property

• Title dispute to real property where the deeds are at odds with oral promises to transfer interests in the property.
• A large national bank foreclosed upon the wrong property - wrong not only in the sense it was not the security for the particular loan, but also, the property was security for a loan by another bank.
• Judge Velasquez was appointed discovery referee in a complex probate, and trust dispute, involving 12 different entities and beneficiaries of an extremely large family trust. Seventeen attorneys battled over whether the trustee breached his fiduciary duty in transactions going back several decades. Complex issues of attorney-client privilege, and third-party financial privacy, and the management of voluminous documents.
• Settled a dispute in which the plaintiff had been in default on her mortgage. She contended the defendant was a disreputable “foreclosure specialist” which “guaranteed” it could obtain a loan modification of the plaintiff’s home loan and stave off the foreclosure sale. Plaintiff further alleged the defendant violated state rules regulating the mortgage assistance industry. The loan was never modified, and plaintiff’s home was sold in foreclosure. The defendant denied it “guaranteed” its services. The documents in the case were ambiguous, but the defendant did offer a “money back guarantee.” Key to settling the case was the fact I spent the time to make a settlement proposal supported by a several page assessment of the strengths and weaknesses of the respective cases as viewed by a neutral third party.
• Mediated an alleged wrongful foreclosure case, wherein the main issue was the scope of damages available to the borrower under the Homeowner Bill of Rights Act.

Assault and Battery

• Time-to-time homeless person, plaintiff is suspected of petty theft by store manager who orders plaintiff's detention out in parking lot until police arrive. Contested fact whether the plaintiff initiated use of force or was tackled without provocation. Plaintiff was taken and held in store break room, where second incident occurred resulting in plaintiff being roughly pushed against wall, and breaking three of his ribs.

Common Carrier

• Head-on collision between a freight train and a commuter train injuring 120 passengers. Crash resulted in many seriously injured, and three fatalities. PTSD was common among the injured.

General Negligence

• Dog bit the plaintiff's leg at the calf while the plaintiff was taking her daily walk. The dog's bite punctured the plaintiff's skin and left a small, permanent scar and loss of feeling to the skin around the wound.
• Five-year old girl lost the flesh around left nostril when bitten on the nose by the neighbor's dog. After initial surgery, girl will likely need at least three more reconstructive surgeries. Case settled in mid-range of six figures.
• In a highly emotional mediation, plaintiffs alleged a cemetery mishandled human remains by agreeing to exhume a body for reburial in another section of the cemetery. A close relative of the deceased had purchased the grave site for the deceased at the time of his death, but the deceased's spouse had selected another grave site several months after the deceased passed away. Spouse claimed she has a statutory right to exhume and dispose of the body. The relative asserted her property and contractual rights and expectations that the cemetery would respect her interests and at least resort to court intervention before exhuming the body.

Personal Injury

• 30-year-old, pregnant female tripped and fell at fast food restaurant landing hard on her knee. 2 hours later she suddenly starts vaginal bleeding. At ER as result of ultrasound, no fetus was found in her uterine, but doctor can't rule out an ectopic pregnancy. Plaintiff has history of ectopic pregnancies and miscarriages. Case settled in mediation.
• While a minor, the plaintiff attended a rock climbing excursion with a youth group. She fell off the simulated cliff and suffered a seriously broken ankle. The plaintiff alleged the youth group failed to properly supervise the event. The youth group asserted secondary assumption of the risk. Case settled in mediation.
• In this mediation, plaintiff was a tourist on a novelty sea craft made to look like a submersible boat. She slipped and fell while descending a ships ladder. Threshold issue was whether the state law of California for common carriers, or Maritime Law governed the boat owner's duty of care. Case settled in mediation.

PI Auto

• Tie-down winch breaks off truck trailer, smashes through windshield of second vehicle and hits the other motorist in the face.
• Auto accident at an intersection resulting in major property damage to the vehicles, and soft tissue injury to the plaintiff. The challenge for the plaintiff was determining which injury was caused by the collision and which was caused by his advanced, pre-existing Multiple Sclerosis.
• Product liability/personal injury. Plaintiff alleged she was injured during a medical procedure when the tip of the endoscopic device being used broke off inside her pancreas. Out of 30,000 such devices manufactured, the product failed less than .010% of the time. Main issue was whether the device was negligently designed or manufactured. Significant 6-figure award.
• Major multi-auto traffic collision resulting in permissive-use cause of action against corporate owner of a truck led to significant 6-figure settlement.

PI Sexual Assault

• Two boys under the age of six accuse their teenage babysitter of sexual molestation. Extremely sensitive issues when dealing with all parties.

Policy Distribution

• Apportionment action by six claimants arising out of a double-fatality car accident where there were inadequate policy limits to cover the loses.

Product Liability

• In a national and international pharmaceutical products liability case, liability hinged on the resolution of a federal preemption issue of "first impression." The lawsuit was framed as both a class action (seeking damages for breach of warranty), and as a consolidated action (seeking personal injury damages) for over 70 individual injury cases, most of which involved catastrophic injury, including blindness and loss of eyes.

Wrongful Death

• As a court appointed discovery referee, referee was called upon to resolve very contentious complex discovery disputes involving numerous parties, voluminous documents and over 12 motions in complex medical malpractice, elder abuse discovery, wrongful death action.