Launch Slideshow

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Judgment Day

Judgment Day

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    Joe Ferrentino, attorney with Newmeyer & Dillon

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    Michael Turner, attorney with Kasdan Simonds

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    Judge David C. Velasquez

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    William Ingalsbe, attorney with Monteleone and McCrory

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    Concrete has deteriorated due to sulfate attack.

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    Left: Batchman Richard Bowman (left) talks with Tim Toland, president of National Ready Mixed Concrete Co., at its plant in Van Nuys, Calif.

Judge Velasquez said the plaintiffs failed to prove the water/cement ratio was incorrect, adding that it didn't even matter because the concrete was chemically sulfate-resistant.

“Because Type II cement with a class F fly ash was also used in the mix, the concrete was fundamentally durable against sulfate attack,” he wrote.

He suggested that the only evidence of actual damage presented, spalling at the leading edges of the garage slabs, was “most likely caused by improper floating and edging techniques used by the installer.”

Who pays?

Castron was the first sulfate attack case that was successfully defended. The defense then asked the court to make the plaintiffs pay for defense expenses. Two kinds of expenses are eligible. Court costs totaling $150,000 are unquestioned. The judge can also consider the defendant's expenses for paid experts (attorney's fees don't count) under two conditions:

  • The winning party had to have made a good-faith offer to settle, which was rejected; the defense made an official settlement offer of $3001 per house.
  • The losing party had to do worse as a result of trial than they would have by accepting the offer; the Castron plaintiffs lost and got nothing at trial.
  • Ingalsbe's claim for expert's fees totaled more $2 million.

    Vaughan argued that the $3001 settlement offer was not made in good faith, and therefore didn't qualify. The defense argued that, historically, the average settlement of sulfate attack claims is about $2000, so the $3001 offer was credible and made in good faith. The judge ruled that the fact that the defense won (they had a defensible case but tried to settle anyway) was evidence that it was a good faith offer.

    In July 2006, Velasquez ruled half of the defense's $2 million—the portion racked up before a September 2004 settlement conference—was a reasonable investment. Beyond that date the expenses didn't make strict business sense on either side, he said. He addressed a central problem for defendants: “There is the great temptation by plaintiffs to use the cost of litigation to bludgeon a settlement out of a defendant.”

    Considering the homeowners' limited ability to pay, he awarded only one-third of the allowed costs, $357,767, to be split among 19 homes. Added to the court costs, it came to about $26,700 per home.

    The appeal was filed in August 2006. The court costs are automatically stayed during the appeal. Vaughan says that the discretionary costs, $357,767, have been paid, but he will not say by whom.

    The lessons

    First, the Castron decision sets no legal precedent. It does not protect anyone from anything in any other case. No judge is bound by the decision. Only other Orange County judges may, if they wish, rely on the pre-trial evidentiary rulings. Beyond that, any future case must stand on its own.