Litigation-Happy Homeowners Left To Rue Their Day In Court

Justice partly prevailed last month as a California court acknowledged the financial burden National Ready Mixed Services Inc. shouldered in a construction


Justice partly prevailed last month as a California court acknowledged the financial burden National Ready Mixed Services Inc. shouldered in a construction defect case charging the Los Angeles-based producer with supplying sulfate attack-prone concrete. Orange County Superior Court Judge David Velasquez ordered the owners of 19 Mission Viejo, Calif., homes to pony up more than $26,000 each to cover expenses incurred to prove that foundations cast from National RM-supplied mixes did not exhibit defects claimed in a lawsuit.

The ruling covers only about one quarter of the $2 million-plus in costs defense attorneys had submitted for court consideration. It still warrants a big thumbs up from concrete interests, who over the past decade have been named in similar lawsuits yielding millions in payouts to southern California homeowners, few if any of whom have used settlements to repair or replace allegedly defective concrete slabs or foundations. Moreover, home owners in the case Û Castron, et al. v. Fieldstone, et al Û had been offered about $3,000 each in June 2004 to settle. Their decision to proceed to trial resulted in about a $30,000 negative swing, perhaps less if legal fees were subtracted from the settlement offer, or more depending on liabilities they might have assumed with counsel. Their pursuit of a trial now carries the short-term costs per the judge’s order. Longer term, the owners could be required to disclose to potential buyers the defects alleged in the suit, which originally sought roughly $265,000 in damages per home. Caveat emptor?

National RM attorneys note that a ruling on plaintiffs’ liabilities is rare. It stems from a California law provision whereby plaintiffs can be ordered to reimburse defendants’ costs when plaintiffs fail to prove at trial damages of at least the amount of a pre-trial settlement offer. Judge Velasquez concluded in his ruling that the costs to the home owners are appropriate and the award to the defendant reasonable. Plaintiffs relied in large part on scientific evidence, the general acceptance of which was highly contestable, he wrote. And because the scientific evidence necessary for each side to produce in the case is very expensive ÷ there is the great temptation by plaintiffs to use the cost of litigation to bludgeon a settlement out of a defendant ÷ Increasing the demand at the [June 2004] settlement conference only guaranteed the case would never settle.

The ruling illustrates the downside of filing such a lawsuit, according to National RM counsel William Ingalsbe, Esq. of Santa Ana, Calif. This judgment drives home the risk a homeowner takes when initiating litigation based on Îjunk science,Ì he affirms. The case is only the second known instance of California plaintiffs being ordered to pay a defendant’s court costs in a defect litigation trial in the past 15 years, he adds, and the concrete industry can view the ruling as a first step toward ending what it considers to be years of frivolous litigation. Rapidly responding to the ruling, the National Ready Mixed Concrete Association enlisted Ingalsbe to conduct Castron Sulfate Attack Seminar (August 2, Phoenix).

Filed in 2002, Castron v. Fieldstone saw more than 10 months of court proceedings. The tide turned in December 2005 when, amid 40-plus days of pretrial testimony, the judge excluded from evidence five kinds of tests plaintiffs’ expert witnesses submitted. The tests failed to satisfy generally accepted scientific standards, notes Orange, Calif., civil engineer Geoffrey Hichborn, Sr., who testified for the defense and was to tag team with Ingalsbe on the Castron seminar. In a past lawsuit, expert witnesses using [such] methods were not able to tell the difference between a concrete sample and a Tums tablet, [or] a diamond and a lump of coal, he says.

His comparisons yield a good case conclusion: Diamonds are forever and concrete from quality suppliers like National Ready Mixed lasts a very long time, but a Tums won’t always dissolve fast enough to relieve a trial observer whose stomach has turned upon hearing weak attempts at evidence.

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