Scott D. McElhern

Partner

621 Capitol Mall
18th Floor
Sacramento, CA 95814

Areas of Law:

Litigation, Construction, Eminent Domain and Inverse Condemnation

Admitted to Practice in:

California

Scott McElhern is the Co-Chair of Downey Brand's Litigation Group. Scott's practice focuses on litigation matters involving construction, eminent domain, real estate and commercial disputes.

Scott has extensive experience representing clients in all aspects of the construction industry. He represents public and private owners, general contractors and subcontractors in construction contract disputes, including claims for delay, disruption, differing site conditions and extra work. He successfully represents owners and contractors in trials and binding arbitrations. Scott also negotiates and drafts construction contracts on behalf of public and private owners, contractors and design professionals.

Scott has worked on a wide-variety of projects including commercial and industrial buildings, subdivision site improvements, hotels, apartment complexes, military visitors quarters, single-family residences, educational facilities, agricultural pumping plants, fish screens, communication towers and electrical generation facilities.

Scott also represents public entities and property owners in eminent domain matters in both state and federal courts. Scott has represented public entities in the acquisition of agricultural, commercial, industrial and residential property for flood protection projects, transmission lines and natural gas pipelines. With respect to property owners, Scott has represented owners in condemnation actions involving highways, roads, bridges and schools.

Scott also practices real estate and general commercial litigation. In a recent case, he obtained a verdict in favor of homeowners after a two week jury trial in Placer County. As a result of the verdict, the homeowners were able to rescind their home purchase agreement and also recover attorneys' fees and prejudgment interest. In total, the homeowners' recovery was in excess of $1,000,000. In another real estate matter, Scott obtained a judgment in favor of a real estate company after a two week court trial relating to the interpretation of easements. The real estate company also recovered its attorneys' fees. Scott then successfully represented the real estate company on appeal.

EXPERIENCE

Construction

Represent public and private owners, general contractors and subcontractors in construction contract disputes, including claims for delay, disruption and extra work.  

Represent public entities in preparing bid documents on public works projects and advise public entities regarding construction claims.

Represent owners, design professionals and contractors in negotiating and preparing contracts.

Represent owners and general contractors in contractual arbitration conducted under the rules of the American Arbitration Association.

Represent general contractors and subcontractors in Federal Miller Act lawsuits.

Obtained favorable award on behalf of owner in AAA arbitration against a general contractor who failed to comply with the terms of the construction contract and was terminated from the project.

Obtained favorable arbitration award on behalf of general contractor in AAA arbitration arising out of the owner's improper termination of the construction contract.

Defended a public entity in a construction contract action brought by a general contractor alleging damages associated with extra work and loss of bonding capacity.

Prosecuted a construction defect action on behalf of a public entity arising from a defectively designed and constructed HVAC system.

Eminent Domain

Represent the Three Rivers Levee Improvement Authority in over 40 property acquisitions in Yuba County for two large levee improvement projects, including the construction of the largest set back levee in the western United States.

Co-chaired jury trial in the case of Three Rivers Levee Improvement Authority v. Danna Investment Company resulting in a verdict that was substantially lower than the pre-litigation offer and deposit of probable compensation. This resulted in a judgment requiring the landowner to return some of the deposit to the public agency.

Obtained pre-condemnation access to numerous properties for environmental and geotechnical investigations necessary for the design of a levee improvement project for the Three Rivers Levee Improvement Authority.

Represent Sutter-Butte Flood Control Agency regarding right-of-way activities for a major flood control project.

Represent the Modesto Irrigation District in 20 separate eminent domain actions involving the acquisition of property for a 230 kV transmission line.

Represented 6 different landowners in eminent domain actions brought by the City of Elk Grove arising out of the Highway 99 and Grantline Road interchange project.

Represented landowners in an eminent domain action brought by the City of Sacramento for the Main Avenue bridge project.

Represented several landowners in eminent domain actions brought by CalTrans to acquire property for the widening of State Route 219 in Stanislaus County.

Represent a local bank in an eminent domain action brought by CalTrans to acquire a portion of bank property for the Highway 50 and Harbor Boulevard Interchange Improvement Project in West Sacramento.

Represent a landowner in an eminent domain action brought by the Lindsay Unified School District for the construction of the new Lindsay High School.

Represent landowners in pre-condemnation activities associated with the Department of Water Resources Bay Delta Conservation Plan and the potential peripheral canal.

Real Estate Litigation

Obtained verdict in favor of homeowners after a two week jury trial. The homeowners were able to rescind their home purchase agreement based on fraud and also recover attorneys' fees and prejudgment interest. In total, the homeowners' recovery was in excess of $1,000,000.

Obtained a judgment in favor of a real estate company after a two week court trial relating to the interpretation of express easements and whether prescriptive easements existed. The real estate company also recovered its attorneys' fees. Successfully represented the real estate company on appeal.

Represented a cement company in a number of complex real estate cases involving the non-judicial foreclosure of commercial properties, the issuance of provisional relief to protect the properties, and several successful unlawful detainer trials to gain possession of the properties.

Represent commercial landlords and tenants in lease disputes.

Commercial Litigation

Represented a probate estate in a two week jury trial arising from contractual claims brought by an acquaintance of the decedent.

Obtained summary judgment for a bank in a lender liability case arising from alleged oral assurances regarding the funding of a loan.

Defended a private corporation in a multi-million dollar action based on alleged non-compliance with state cogeneration law.

Represented a private corporation in a multi-million dollar commercial dispute arising from the sale of a defective product.

Represented HVAC manufacturer in several cases arising from alleged carbon monoxide exposure.

Represented a public entity in cases involving alleged dangerous condition of public property.

General

Former Judicial Extern to Magistrate Judge Edward A. Infante, United States District Court, Northern District of California, San Jose, California

MEMBERSHIPS

State Bar of California, Litigation Section, Member

United States District Courts for the Eastern, Central, Northern and Southern Districts of California, Admitted to Practice

Legal Advisory Committee of the Associated General Contractors of California, Member

Sacramento County Bar Association, Construction and Business Law Sections, Member

National Institute for Trial Advocacy's National Session, Graduate

Milton L. Schwartz Inn of Court, Former Member

EDUCATION

Santa Clara University, School of Law (J.D., 1994)

University of California, Davis (B.A., 1991)

CHARITABLE

Board of Directors for the Yolo Basin Foundation, Executive Committee Member

Leadership Sacramento, Sacramento Metro Chamber of Commerce, Graduate