Practices


Speaking Engagements / Events

1 related items

Natural Resources


Speaking Engagements / Events

1 related items

Litigation


Speaking Engagements / Events

1 related items

Business

Business


Speaking Engagements / Events

1 related items

Air Quality & Climate Change

California’s air quality requirements and the State’s pioneering efforts in reducing greenhouse gas emissions are constantly evolving and present many challenges and opportunities for California businesses of all sizes. These businesses turn to Downey Brand to lead them through California’s stringent air quality regulations and complex greenhouse gas reduction requirements.

Our Air Quality and Climate Change attorneys stay current on the latest legal developments and provide cost-efficient compliance solutions for our wide range of clients. Whether it is an energy trader participating in the Cap-and-Trade program, a food processor permitting a new or expanded facility, an oil and gas developer analyzing their carbon impact under the California Environmental Quality Act (CEQA), or a manufacturing facility trying to figure out how to maintain compliance with Clean Air Act (CAA) permits and reporting obligations, Downey Brand attorneys can provide strategic, practical counsel.

Businesses operating in California face some of the nation’s most stringent air quality requirements and these requirements may vary significantly based on location of operations. Our attorneys have strong knowledge of the myriad of federal, state and air district regulations and the practical experience to guide clients through permitting, compliance, and reporting obligations. We work with US EPA and California Air Districts to ensure our client’s operating needs are met during the rulemaking process. We assist clients in obtaining air permits required at new facilities and major expansions, including New Source Review (NSR), New Source Performance Standards (NSPS), and National Emission Standards for Hazardous Air Pollutants. We advise clients on reporting requirements and compliance certifications, including Title V, and defend clients when being investigated by state or federal agencies.

Assembly Bill 32 (commonly referred to as AB 32) has charged the California Air Resources Board (CARB) with reducing greenhouse gas emissions. CARB’s actions to meet this challenge have resulted in compliance obligations that affect almost all industries in California. These obligations include reporting GHG emissions, participation in the Cap-and-Trade program, and restrictions on emissions of short-lived climate pollutants including methane. Our main office is located in Sacramento, just blocks from CARB headquarters and the other state agencies that are developing California’s greenhouse gas law and policy. Our close proximity to these agencies has given us the unique ability to get to know the key climate change regulators on a personal level. These relationships have helped us address our clients’ climate change related issues as quickly and accurately as possible.

Our attorneys have been involved in climate change regulation from the start, participating in the development of regulations to establish California’s greenhouse gas reporting system and the Cap-and Trade program. We have also participated in regulations impacting municipal utilities by the California Energy Commission, and in the statewide rules requiring the increased use of renewable energy resources as a source of power. Our attorneys are keenly aware of the risk that over-regulation of greenhouse gas emissions may cause companies to leave California (also known as emissions “leakage”). To that end, we have helped clients reach solutions with regulators to ensure that California remains on track for its greenhouse gas reduction goals, while ensuring that business operations remain feasible. We advocate on behalf of clients in proceedings to establish who will get rebates from their electric utility. We also obtained a favorable decision that set statewide precedent for how greenhouse gas impacts from gas fired power plants are analyzed in California.

Clients also turn to Downey Brand for advice on addressing greenhouse gas impacts within the construct of CEQA. Where significance standards have not already been set under CEQA, we help develop and apply such standards in a way that is both acceptable to the government and feasible for our clients. We work with our clients and consultants to develop defensible greenhouse gas impact analyses for our clients’ projects. Where necessary, we work to create feasible mitigation strategies to ensure that development is both financially viable and environmentally responsible. We represent our clients in court proceedings to defend appropriate greenhouse gas analyses, and to challenge inappropriate analyses, all with the goal of advancing our clients’ interests.

Our clients include power plant developers, oil and gas developers, transportation companies, food processors, cement manufacturers, aggregate mines, residential developers, and many other types of companies.


Selected Experience

  • Assisted clients with developing legally-defensible greenhouse gas significance thresholds under the California Environmental Quality Act (CEQA).
  • Advised large industrial and commercial operations included in phase one implementation of the greenhouse gas reporting regulations on their obligations and potential upcoming liability for greenhouse gas emissions. Following implementation of Cap-and-Trade, advised energy clients on the mechanics of and obligations under Cap-and Trade.
  • Developed an overarching greenhouse gas emissions analysis and mitigation strategy for an oil and gas extraction project.
more
  • Assisted clients with developing legally-defensible greenhouse gas significance thresholds under the California Environmental Quality Act (CEQA).
  • Advised large industrial and commercial operations included in phase one implementation of the greenhouse gas reporting regulations on their obligations and potential upcoming liability for greenhouse gas emissions. Following implementation of Cap-and-Trade, advised energy clients on the mechanics of and obligations under Cap-and Trade.
  • Developed an overarching greenhouse gas emissions analysis and mitigation strategy for an oil and gas extraction project.
  • Advised developers regarding compliance with federal greenhouse gas requirements under the Clean Air Act. Represented a large retail service provider in the comprehensive greenhouse gas reduction proceedings in California under Assembly Bill 32 before the California Air Resources Board, California Energy Commission and California Public Utilities Commission.
  • Advised clients regarding their ability to participate in California’s existing greenhouse gas emission offset development protocols.
  • Worked with CARB to advocate for the development of new statewide greenhouse gas emission offset development protocols to provide new business opportunities for agricultural clients.

Speaking Engagements / Events

1 related items

Appellate & Writ Practice

Downey Brand’s appellate and writ practitioners handle appeals in both state and federal courts and in numerous practice areas from environmental to intellectual property, construction to healthcare, and employment to real estate.

We are equally adept at handling appeals where we have been extensively involved in the trial court proceedings as we are at stepping in as appellate counsel to defend judgments obtained or seek reversal of unjust results in the trial court. When appropriate, we match experts in the substantive law with appellate specialists to handle the appeal in the manner which gives our client the greatest probability to prevail.

Effective arguments in the trial court often do not translate to winning arguments on appeal. In the superior courts, the trier of fact (whether judge or jury) is looking for justice. On appeal, the court looks for legal error. An appellate lawyer brings a unique set of skills and a fresh perspective to your case.

Certified Appellate Specialist Jay-Allen Eisen

In 2017 Downey Brand expanded its appellate expertise by bringing in highly-regarded appellate specialist Jay-Allen Eisen. Certified by the State Bar of California as an Appellate Law Specialist, Eisen has been counsel in more than 300 appeals and appellate writs, and his name appears on over 120 published decisions. He has handled cases in every District Court of Appeal in the state, the California Supreme Court, and the Ninth Circuit Court of Appeals. Jay-Allen Eisen has been shaping the law in California through the appellate process for almost fifty years, and his presence at Downey Brand offers clients the highest level of appellate law practice.

Civil Appeals

Appellate procedure consists of the rules and practices by which appellate courts review trial court judgments and orders. Appellate review performs several functions, including the correction of errors committed by the trial court, development of the law and precedent to be followed and anticipated in future disputes, and the pursuit of justice. In reviewing errors of the lower court, the errors focused on are of a legal nature, appellate courts will usually not disturb factual findings.

Several issues are foremost in appeals, such as what judgments are appealable, how appeals are brought before the court, what kind of argument the appealing party, appellant, will have to make to convince the appellate court to reverse the lower court (e.g., a showing that there was no “substantial evidence” to support the judgment, “abuse of discretion,” “clear error,” etc.), and what procedures parties must follow.

Writ Law

The development of English Common Law relied on the courts to issue orders known as “writs” that allowed individuals to proceed with a legal action. Over time the courts also used writs to direct lower courts or tribunals, governmental officials, sheriffs, and attorneys to perform, or to refrain from performing, certain actions. In modern law, courts primarily use writs to grant extraordinary relief—that is, relief that there is no other adequate means of obtaining. A trial court’s rulings before final judgment generally cannot be appealed. An appellate court may review the ruling in a writ proceeding. Most other common-law writs were discarded in U.S. law, as the courts moved to simpler and more general methods of litigating civil actions.

A writ is obtained by petitioning the court. Appellate lawyers handle writ petitions in both the superior courts and the appellate courts on a variety of issues, including land use, professional license discipline, and other actions of government agencies. Most trial court rulings before the entry of a final judgment aren’t appealable. A writ may also be available to obtain immediate appellate review of such interlocutory rulings

Motion Law

A motion asks a court for an order during the course of a case. There are many types of motions. Some may be made orally in open court, such a motion during trial to direct a witness to answer a question. The court will usually rule on these motions immediately. But most motions (especially on issues that could decide the entire case) must be written, filed with the court and served on other parties in the case well before the court hears oral arguments. As a general rule, and depending on the jurisdiction and type of motion, the moving party has to file a motion and give the opposing party notice 20-30 days before the hearing. Motion papers will include a memorandum of points and authorities, which is the written legal argument. If it is necessary to establish facts that give rise to the motion, evidence is presented through affidavits or declarations under penalty of perjury; there is usually no oral testimony.

A party who opposes a motion has the opportunity to file and serve opposition papers. Most jurisdictions also allow the moving party to file reply papers rebutting the points made in the opposition. The court hears oral argument on the motion after all of the papers from each side have been filed and served.

Customs vary widely as to whether the court will hear oral argument. In some courts, oral argument is optional with the judge. In others, the attorneys have the right to appear before the judge to argue their cases. In some cases, the court may order the attorneys to appear. Some courts issue tentative rulings after which a party may request oral argument. Depending upon the type of motion and the jurisdiction, in a court that does hear oral argument, the court may simply issue an oral decision from the bench and may order the attorney for the party that prevailed on the motion to draft an order for the court’s signature. Or, instead of ruling immediately, the court may take the matter under submission and rule on the motion after considering it more fully. The court’s decision may be a simple statement that the motion is granted or denied. The court may draft a written decision and order explaining the factual and legal basis for its ruling. In some cases, the court may simply fill out a standard court form with checkboxes for different outcomes.

Motions are similar to appeals in an important respect. Appeals are presented on written briefs that set out the parties’ legal arguments as to why a trial court’s judgment or order should be reversed or upheld. Likewise, a memorandum of points and authorities in support of a motion sets out legal arguments why the court should grant or deny the motion.

Known for their ability to persuasively write and orally advocate their client’s position, our appellate lawyers are often frequently on board in trial proceedings to brief and argue everything from routine discovery motions to dispositive motions such as demurrers and summary judgment motions, and often in limine motions where specific evidentiary issues may decide the outcome at trial.

Substantive Areas

Downey Brand offers appellate expertise from lawyers who have prosecuted and defended civil appeals, writs, and motions in a broad range of areas, including:

  • Administrative law
  • Amicus advocacy
  • Business litigation
  • Civil procedure issues
  • Civil rights and constitutional law
  • Construction law
  • Employment law
  • Environmental law
  • Family law
  • Land Use
  • Personal injury
  • Probate law
  • Products liability
  • Professional licensing
  • Real estate litigation

Selected Experience

  • After obtaining judgment in construction defect case against builder of client’s home at the conclusion of seven day jury trial, Downey Brand not only successfully defended the client’s judgment from attack by builder on appeal, but also obtained rarely-awarded sanctions against builder and its attorney for prosecuting a frivolous appeal.
  • In litigation involving significant corporate practice of medicine, anti-trust, and Section 17200 claims against major Northern California hospital, Downey Brand obtained reversal from the California Court of Appeal, Third Appellate District of summary judgment entered against its client, a medical group practicing at the hospital. Remand of the action back to Butte County Superior Court for a jury trial caused an almost immediate, favorable settlement for Downey Brand’s client.
more
  • After defeating a motion to dismiss brought by union seeking to preclude Downey Brand’s client from going forward with his claims for defamation and intentional infliction of emotional distress based on union’s distribution of flyers in client’s neighborhood, Downey Brand successfully defeated union’s appeal. In a published opinion, Third District Court of Appeal agreed with Downey Brand’s argument that union’s distribution of flyers was not constitutionally-protected activity, and upheld trial court’s denial of union’s motion to dismiss client’s claims under California’s Strategic Litigation Against Public Participation (“anti-SLAPP”) statute. Downey Brand’s victory in the appellate court allowed client to go forward on the merits of his claims against the union. Price v. OE3 195 Cal.App.4th 962 (2011).
  • After obtaining judgment in construction defect case against builder of client’s home at the conclusion of seven day jury trial, Downey Brand not only successfully defended the client’s judgment from attack by builder on appeal, but also obtained rarely-awarded sanctions against builder and its attorney for prosecuting a frivolous appeal.
  • In litigation involving significant corporate practice of medicine, anti-trust, and Section 17200 claims against major Northern California hospital, Downey Brand obtained reversal from the California Court of Appeal, Third Appellate District of summary judgment entered against its client, a medical group practicing at the hospital. Remand of the action back to Butte County Superior Court for a jury trial caused an almost immediate, favorable settlement for Downey Brand’s client.
  • As litigation counsel for property developer sued by adjoining landowner for actions related to pursuit of development entitlements from County of Placer, Downey Brand obtained dismissal of suit in its entirety at outset of case under California’s Strategic Litigation Against Public Participation (“anti-SLAPP”) statute, based on client’s constitutional free speech and public participation rights. Dismissal was affirmed by the California Court of Appeal, Third Appellate District.
  • After obtaining dismissal of claims based on alleged groundwater contamination caused by client’s dry cleaning operations, Downey Brand represented client in five separate appeals brought by the City of Lodi, in both the Third District Court of Appeal and Ninth Circuit. The state and federal appellate courts struck down several provisions of ordinance enacted by the City which sought to change liability standards, burdens of proof and enforcement authority allowed by current state and federal hazardous waste laws including the California Hazardous Substances Account Act and the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Speaking Engagements / Events

1 related items

Bankruptcy & Insolvency

Downey Brand’s Bankruptcy and Insolvency Group is a multi-disciplinary and multi-jurisdictional practice that includes members with an average of over twenty-five (25) years’ experience each. As leaders in the field in both Northern California and Nevada, our bankruptcy attorneys bring a unique combination of state law litigation and practice along with decades of experience in Bankruptcy Courts across the country.

Our bankruptcy attorneys generate success for a wide range of stakeholders in insolvency related matters, including debtors in complex chapter 11 cases, committees, secured and unsecured creditors, receivers and other court appointed fiduciaries, asset purchasers, trustees, hedge funds, equity security holders, and special servicers in many diverse industries such as real estate (office, retail, multi-family, land), food and agriculture, retail, banking and financial institutions, asset based lending, environmental, construction, energy, manufacturing, engineering, mining, and oil and gas.

For troubled or challenged companies or high net-worth individuals, our interdisciplinary team includes corporate restructuring and tax professionals, allowing a team approach that brings with it the specialized and focused expertise which is available at Downey Brand.

In addition to select debtor representation, our bankruptcy attorneys represent financial institutions and special servicers from credit inception through enforcement and trial, including loan documentation, navigating default and foreclosure of real and personal property for secured creditors, exercising prejudgment remedies including receiverships, and representation in bankruptcy court on behalf of such clients as Textron Financial, Farm Credit West, Farmers & Merchants Bank, Silverpoint Capital, California Bank & Trust, Met Life, Credit Suisse, Golden 1 Credit Union, and various special servicers and leading financial institutions in their capacity as trustee/servicer.

When an out of court solution is not practicable, our team is proud of its achievements and results, including litigation and confirmation of plans of reorganization on behalf of industry-leading companies and obtaining unanticipated distributions out of chapter 11 cases on behalf of creditors’ committees or other creditor constituencies. The favorable results obtained by Downey Brand for its clients have made its Bankruptcy & Insolvency Group an industry leader.


Selected Experience

  • In a recent dairy chapter 11 the firm helped Farm Credit West obtain full payment of over $30 million, including default interest, prepayment premiums, attorney’s fees and costs.
  • In the Pacific Gas and Electric Company case the firm represented Merced Irrigation District in helping to defeat PG&E’s first proposed chapter 11 plan which provided for the breakup of PG&E.
  • In the IRM case which involved over 50 properties, 100 partnerships and 2000 investors the firm restructured all of these into a single, public limited liability company which ultimately resulted in investor recoveries
more

Creditor Representations

  • In a recent dairy chapter 11 the firm’s bankruptcy attorneys helped Farm Credit West obtain full payment of over $30 million, including default interest, prepayment premiums, attorney’s fees and costs.
  • In the Pacific Gas and Electric Company case the firm represented Merced Irrigation District in helping to defeat PG&E’s first proposed chapter 11 plan which provided for the breakup of PG&E.
  • In the IRM case which involved over 50 properties, 100 partnerships and 2000 investors the firm’s bankruptcy attorneys restructured all of these into a single, public limited liability company which ultimately resulted in investor recoveries

Debtor Representations

  • Confirmed chapter 11 plan of reorganization for luxury houseboat rental and sales operator, including payment in full to unsecured creditors and restructure of matured secured debt at favorable terms.
  • Represented a Lake Tahoe timeshare developer in Chapter 11 including related shareholder litigation, leading to confirmation of liquidating plan.
  • Confirmed Chapter 11 Plan of Reorganization for organic foods retailer leading to successful post-confirmation sale of business.
  • Co-counsel for the Debtors in the jointly administered cases of Circus and Eldorado Joint Venture, dba Silver Legacy Resort Casino, and Silver Legacy Capital Corp.

Committee Representations

  • Represents the Official Committee of Unsecured Creditors in the SK Foods, L.P. chapter 11, one of the largest chapter.11’s filed in the Eastern District of California.
  • Represented the Official Committee of Unsecured Creditors in the Matterhorn, Inc. case, a large scale manufacturer of ice cream and novelty confections.
  • Represented the Official Committee of Unsecured Creditors in Chapter 11 case involving a U.S subsidiary of an international medical device manufacturer, resulting in substantial distribution to unsecured creditors.
  • Counsel to the Official Committee of Unsecured Creditors in the case of singer and entertainer Wayne Newton.

Additional representative casework includes substantive roles in connection with the following cases: Enron, Montgomery Ward, K-Mart, Linens N Things; United Air Lines, Delta Air Lines, 360 Global Wines, City of Vallejo Chapter 9 municipal bankruptcy, Shasta Lake Resorts, Commonwealth Equity Trust, Desert Power, Circuit City, Dunmore Homes, Hometown Buffet, Mervyn’s, Quebecor, Mariner Post- Acute Network, Inc., Tower Records, Zacky Farms, Aquarius Pools, Flying J, Inc., Reynen & Bardis, Sagewood Manor Associates Ltd., Tropicana Entertainment, LLC, Specialty Trust, Inc., and others.

Speaking Engagements / Events

1 related items

CEQA / NEPA

Downey Brand’s natural resources lawyers have particular expertise in analyzing environmental impacts and defending litigation under the California Environmental Quality Act (CEQA) and its federal counterpart, the National Environmental Policy Act (NEPA).

Compliance

Our attorneys with expertise in environmental impact review regularly develop and implement CEQA and NEPA compliance strategies that keep projects on track and legally defensible. These attorneys are often called upon to evaluate the appropriate level of environmental review for a given project – including whether the project may be exempt from review – and to assess alternative compliance strategies. They also evaluate negative declarations, environmental impact reports, and environmental impact statements for legal adequacy, and revise those documents as needed to ensure compliance and minimize litigation risk.  Our CEQA/NEPA experts provide this advice to public agencies and private applicants across a wide variety of water supply, oil & gas, renewable energy, mining, commercial, residential, and infrastructure projects throughout California.

The projects on which we advise often require integrated review under CEQA, NEPA, and other state and federal regulatory requirements, such as the Clean Water Act, Porter-Cologne Water Quality Control Act, Fish and Game Code (Lake and Streambed Alteration Agreements), Endangered Species Act (California and Federal), Bald and Golden Eagle Protection Act, National Historical Preservation Act, and AB 32, to name a few. Our in-depth experience with these requirements allows us to work closely with the relevant state and federal regulatory agencies, and to deftly weave the required analysis and permitting into the environmental impact review process.

Litigation

When necessary, we litigate CEQA and NEPA challenges in both state and federal courts and in administrative proceedings before state and federal regulatory agencies (e.g., California Public Utilities Commission and United States Bureau of Land Management). Downey Brand has successfully defended many projects against CEQA and NEPA claims at trial and on appeal, including before the California Supreme Court and the Ninth Circuit Court of Appeals.


Selected Experience

  • Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal.4th 155 (2011).  Prevailed on review in the California Supreme Court regarding proper application of CEQA’s fair argument standard.
  • San Francisco Baykeeper, Inc. v. California State Lands Commission, 242 Cal.App.4th 202 (2015).  Represented two leaseholders in CEQA/public trust action challenging EIR for sand mining leases in San Francisco and Suisun Bays.  Prevailed at trial and on appeal on all claims brought under CEQA, including with respect to the environmental baseline, cumulative impacts, recirculation, thresholds of significance, and consultation with trustee agencies.
  • Delaware Tetra Technologies, Inc. v. County of San BernardinoCenter for Biological Diversity v. County of San Bernardino.  Assisted in defense of County as responsible agency in six coordinated actions challenging groundwater project under CEQA and the County’s Desert Groundwater Management Ordinance.  Prevailed at trial and on appeal on all claims.  Appeal resulted in two published decisions (— Cal.App.4th — (2016 WL 2742702)  and — Cal.App.4th — (2016 WL 2742824) and four unpublished decisions.
more

Representative Water Projects

  • Cadiz Valley Water Conservation, Recovery, and Storage Project, San Bernardino County.  Advised the County, a responsible agency, on evaluation and approval of groundwater pumping project in the Mojave Desert proposed to recover up to 50,000 acre feet of native groundwater annually over a 50-year period.  The plan was approved by the Board of Supervisors on October 1, 2012.
  • Camanche Permit Extension, Amador and Calaveras Counties.  Advised East Bay Municipal Utility District on CEQA review of application to the State Water Resources Control Board to divert and store up to 125 million gallons per day (140,000 acre-feet per year) of surface water from the Mokelumne River for municipal purposes. Issues addressed by the EIR included the environmental baseline, impact analysis, cumulative impacts, and alternatives.

Representative Infrastructure, Real Estate Development, and Brownfields Redevelopment

  • Bridgeway Square Apartments, City of Rancho Cordova.  Assisted residential real estate developer on land use entitlements and supplemental environmental review under CEQA for 199-unit apartment building in the City of Rancho Cordova.
  • Concord Naval Weapons Station, Contra Costa County.  Advising the East Bay Regional Park District on all land-use aspects of the transfer and reuse of approximately 2,200 acres of the former naval base, including remediation and land use controls, NEPA and CEQA compliance, and permitting and consultations under the Clean Water Act, Endangered Species Act, and federal and state laws governing historical and cultural resources.
  • East Cypress Corridor Project, Contra Costa County.  Represented national homebuilders on environmental review of a 1,255-acre master-planned community under NEPA and CEQA and obtained permits associated with surface waters and wetlands, water supply, and endangered fish and wildlife.
  • Vista Grande Drainage Basin Improvement Project, San Francisco and San Mateo Counties.  Representing the City of Daly City on a joint environmental document  being prepared under CEQA and NEPA for a $120 million stormwater management and infrastructure project, including the replacement and enhancement of existing infrastructure, installation of constructed wetlands, and management of water levels within the historical lake basin.  Advising client on regulatory and permitting requirements for federal special use permits, land use entitlements, and federal and state permits associated with surface waters and wetlands, coastal development, and sovereign lands administered by the California State Lands Commission.
  • Religious Facility and Cemetery, Santa Clara County.  Representing South Valley Islamic Community in connection with CEQA review of proposed project – including mosque, community center, and cemetery – in San Martin, California.

Representative Energy and Mining Projects

  • Distribution Station, Los Angeles County.  Advised public water and energy agency on CEQA compliance for an EIR for the construction of a new electrical power distribution station.
  • Lease and Permit Extensions for Bay and Western Delta Sand Mining, San Francisco, Solano, and Contra Costa Counties.  Advising two aggregate mining operators on all permits and entitlements for mining up to 1.35 million cubic yards of construction-grade alluvial sand annually from the San Francisco Bay, Suisun Bay, and western Delta.  Advised the clients on completion of the Project EIR with the California State Lands Commission and helped secure permits from the Bay Conservation and Development Commission and the Regional Water Quality Control Board.
  • Oil Drilling and Production, Santa Barbara County.  Comprehensive CEQA review of oil wellfield and infrastructure needed to deliver recycled water for production process.  Significant issues included compliance with California’s cap and trade program, climate change impacts and mitigation, and consultations with federal and state wildlife agencies on endangered species.
  • Photovoltaic Solar Project, Inyo County.  Advised public water and energy agency on an EIR for a 200 megawatt photovoltaic solar farm.
  • Photovoltaic Solar Project, Riverside County.  Advised a utility-scale solar developer with respect to NEPA and CEQA compliance and preparation and review of CEQA findings for its proposed 150-megawatt, 1,200-acre solar photovoltaic power plant on federal lands administered by the Bureau of Land Management, as well as associated endangered species and other natural resources authorizations under state and federal law.
  • Photovoltaic Solar Project, San Bernardino County.  Advised a utility-scale solar developer with respect to NEPA and CEQA compliance for its proposed 358-megawatt photo-voltaic power plant in unincorporated San Bernardino County.
  • Solano Wind Project, Solano County.  CEQA review for 128-megawatt project involving 75 wind turbine generators and associated transmission in the Collinsville-Montezuma Hills Wind Resource Area, including review of avian and bat mortality, air traffic control radar, construction-related air quality emissions, and aesthetics.
  • Surface Mining Operation, Alameda County.  Advised a global building materials company on CEQA compliance, county permitting requirements, and streambed alteration agreements with respect to the amendment of its existing use permits for a 925-acre surface mining operation.

Litigation

  • Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal.4th 155 (2011).  Prevailed on review in the California Supreme Court regarding proper application of CEQA’s fair argument standard.
  • San Francisco Baykeeper, Inc. v. California State Lands Commission, 242 Cal.App.4th 202 (2015).  Represented two leaseholders in CEQA/public trust action challenging EIR for sand mining leases in San Francisco and Suisun Bays.  Prevailed at trial and on appeal on all claims brought under CEQA, including with respect to the environmental baseline, cumulative impacts, recirculation, thresholds of significance, and consultation with trustee agencies.
  • Delaware Tetra Technologies, Inc. v. County of San Bernardino; Center for Biological Diversity v. County of San Bernardino.  Assisted in defense of County as responsible agency in six coordinated actions challenging groundwater project under CEQA and the County’s Desert Groundwater Management Ordinance.  Prevailed at trial and on appeal on all claims.  Appeal resulted in two published decisions (— Cal.App.4th — (2016 WL 2742702)  and — Cal.App.4th — (2016 WL 2742824) and four unpublished decisions..
  • Sunnyvale West Neighborhood Ass’n. v. City of Sunnyvale City Council, 190 Cal.App.4th 1351 (2010).  Defended EIR prepared by City of Sunnyvale for a major transportation infrastructure project, in both the trial court and the appellate court.  Case resulted in key appellate decision regarding selection of a baseline for CEQA impacts analysis.
  • City of Santee v. County of San Diego, 186 Cal.App.4th 55 (2010).  Prevailed for the California Department of Corrections and Rehabilitation in the first published appellate decision to apply the California Supreme Court’s ruling in Save Tara, which pertains to whether or not a particular activity involves a sufficient “commitment” and thus constitutes a definite course of action for purposes of triggering CEQA review.
  • Friends of the Kings River v. County of Fresno, Fresno Co. Sup. Ct. (2013).  Prevailed in defending against challenge to use permit and reclamation plan for an aggregate mine under CEQA and SMARA.
  • Eldorado-Ivanpah Transmission Project, San Bernardino County (2011).  Represented two utility-scale solar developers in opposing requests for rehearing in administrative proceedings before the California Public Utilities Commission.  The rehearing requests alleged that the Commission violated CEQA in approving a substation and transmission line upgrades needed for new solar energy resources in the Ivanpah Valley.
  • Masonite Corporation v. County of Mendocino, 215 Cal.App.4th 230 (2013).  Represented landowner in action challenging an Environmental Impact Report (EIR) under CEQA and California planning and zoning laws.  Prevailed on appeal.
  • Bertani v. City of Vacaville, 2005 Cal.App. Unpub. LEXIS 5552 (2005). Defense against CEQA and zoning code challenges to commercial shopping center.  Prevailed at trial and on appeal.
  • Santa Teresa Citizens Action Group v. City of San Jose, 114 Cal.App.4th 689 (2003).  Defense against suit challenging construction of a pipeline for delivery of reclaimed water to a new energy facility brought by a private water company under CEQA, California planning laws, and the common law public trust doctrine. Prevailed at trial and on appeal.
  • Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal.4th 481 (2010).  Represented landowner in defense of claim that approval of a shopping center violated CEQA, the California Constitution, and California planning and zoning laws.  Prevailed on appeal to California Supreme Court.

Speaking Engagements / Events

1 related items

Class Action Defense

Knowing that class action suits can significantly impact a company’s operations and possibly its reputation, Downey Brand’s litigators work with clients throughout California to resolve these complicated cases as quickly and efficiently as possible.

Our attorneys have defended and successfully resolved numerous complicated class actions for clients in cases alleging deceptive trade practices and advertising acts, violation of unfair competition and unfair business practices laws, negligence and product liability claims, and other consumer protection statutes. We represent clients in many industries including manufacturing, high tech, banking and financial services, shopping center, retail and consumer goods, healthcare, and construction sectors. Many of the cases we handle involve California Business & Professions Code Section 17200 claims (California’s “Unfair Competition Law”) and the California Consumer Legal Remedies Act, as well as common law claims based on fraud, negligent misrepresentation and failure to disclose, false and deceptive advertising, and product failure.

While there is no one-size-fits-all approach to class action defense, based on our extensive experience we have developed a number of successful strategies for defending clients against class claims at all stages of the case. We believe that early case assessment is critical. Thus, our lawyers work with our clients from inception to assess the case and determine the best strategies to pursue given the case’s unique circumstances. This often means that we vigorously defend our clients from the outset of the case. We have been successful at having putative class claims dismissed on motion, before substantive discovery starts, and have also defeated motions for class certification–thereby reducing the potential exposure on a case from many millions of dollars to a negligible amount. At other times, our early case assessment leads our clients to explore settlement. We have been successful in structuring creative settlements of complex class claims–settlements which received the required court approval while also minimizing the economic impact on our clients.


Selected Experience

  • Successfully defended large window manufacturer in nationwide class action asserting violations of the Magnusson-Moss Act and state unfair business practices claims. Downey Brand’s successful motion for judgment on the pleadings resulted in judgment in favor of client on the merits.
  • Represented computer parts distributor in nationwide consumer class action involving claims of unfair competition and fraud. As part of the strategy Downey Brand developed for attacking the lawsuit at the pleadings stage, prior to discovery and significant legal costs, Downey Brand obtained disqualification of class action counsel, which ultimately resulted in dismissal of all class allegations against client.
  • Represented Fortune 500 national dialysis provider in a state-wide wage and hour class action for unpaid overtime, missed rest and meal breaks, penalties and unfair business practices. Downey Brand aggressively worked to analyze the facts and defenses early in the case, which strongly positioned client at mediation, resulting in favorable settlement of claims involving putative class of more than 700 current and former employees.
more
  • Currently representing large California credit union in defense of putative class action challenging debit card overdraft practices. Litigation is on-going.
  • Successfully defended large window manufacturer in nationwide class action asserting violations of the Magnusson-Moss Act and state unfair business practices claims. Downey Brand’s successful motion for judgment on the pleadings resulted in judgment in favor of client on the merits.
  • Represented computer parts distributor in nationwide consumer class action involving claims of unfair competition and fraud. As part of the strategy Downey Brand developed for attacking the lawsuit at the pleadings stage, prior to discovery and significant legal costs, Downey Brand obtained disqualification of class action counsel, which ultimately resulted in dismissal of all class allegations against client.
  • Represented Fortune 500 national dialysis provider in a state-wide wage and hour class action for unpaid overtime, missed rest and meal breaks, penalties and unfair business practices. Downey Brand aggressively worked to analyze the facts and defenses early in the case, which strongly positioned client at mediation, resulting in favorable settlement of claims involving putative class of more than 700 current and former employees.
  • Represented large regional food processing company in arbitration on two separate class claims, one for violation of California’s Unfair Competition Law based on allegations that client engaged in practices designed to drive down crop prices, and one for conversion based on allegations that client failed to pay money owed under grower contracts. Downey Brand obtained an order decertifying the class on the Unfair Competition Law claim, and successfully defended client at the arbitration on the conversion class claim, obtaining a complete defense verdict as well as substantial award of attorney’s fees against the class representative.
  • Represented national retailer in class action involving up to 1,000 former and current employees. Downey Brand successfully opposed motion for class certification which resulted in nominal settlement with representative plaintiffs.
  • Litigation and appellate counsel for shopping center owner in defense of class action suit filed by group of tenants for fraud, unfair and deceptive business practices, and breach of contract. Downey Brand defeated plaintiff’s motion for class certification, based on plaintiff’s failure to demonstrate common issues of fact or law, which was upheld on appeal based on Downey Brand’s briefing.
  • Counsel for national fireplace manufacturer in two personal injury class actions asserting strict products liability and negligence claims based on failure to warn of dangerous and defective product. Downey Brand obtained settlement on terms favorable to client following meditation (details cannot be provided per confidentially agreement).

Speaking Engagements / Events

1 related items

Complex Business Litigation

Many of the region’s leading companies trust their most significant litigation to Downey Brand—with good reason. We have some of the most knowledgeable and resourceful trial and appellate lawyers in Northern California, with extensive experience in state, federal and administrative tribunals throughout California and Nevada.

Our attorneys have a proven record of successfully handling a wide variety of complex high-stakes commercial and business cases. Our experience covers the waterfront for both plaintiffs and defendants in business, employment, qui tam, class action, securities, antitrust, shareholder and partnership disputes, probate, healthcare, intellectual property, federal and state investigations, construction, wildland fire, real estate, and environmental matters.

Recognizing that litigation can be a costly distraction, we work closely with our clients to pursue creative, efficient and practical solutions to a wide array of contentious disputes. However, if pre-trial resolution is impossible—or where a more aggressive posture is warranted—we never hesitate to call upon our substantial experience and skill to aggressively pursue and defend our clients’ interests through trial and appeal.

Downey Brand has the region’s largest litigation department, with over 40 lawyers who handle diverse matters in civil, appellate and regulatory forums. Our litigation attorneys have the confidence and legal acumen to efficiently and effectively obtain results for our clients.


Selected Experience

  • Downey Brand represented Sierra Pacific Industries in litigation stemming from the Moonlight Fire, one of this country’s largest ever wildland fire cost recovery actions. The Moonlight Fire matters were tried in both federal and state court, and initially resulted in a federal settlement with the United States Forest Service for pennies on the dollar. Downey Brand’s client was recently completely vindicated in Plumas County Superior Court when, three days before trial was set to commence, the court dismissed all six separate cases filed against it and entered judgments in favor of Sierra Pacific Industries.
  • Downey Brand handled contentious and protracted litigation on behalf of real estate holding company Park Cattle Co. in litigation against Bill Yung and his Tropicana gaming and holding companies for enforcement of a ground lease for the Horizon Casino Resort in South Lake Tahoe. A two month jury trial resolved two days before Downey Brand’s closing argument when Yung and Tropicana agreed to dismiss their complaints against Park Cattle, return the Horizon property, and pay $165 million in damages, plus interest, to Park Cattle.
more
  • Downey Brand represented Sierra Pacific Industries in litigation stemming from the Moonlight Fire, one of this country’s largest ever wildland fire cost recovery actions. The Moonlight Fire matters were tried in both federal and state court, and initially resulted in a federal settlement with the United States Forest Service for pennies on the dollar. Downey Brand’s client was recently completely vindicated in Plumas County Superior Court when, three days before trial was set to commence, the court dismissed all six separate cases filed against it and entered judgments in favor of Sierra Pacific Industries.
  • Downey Brand handled contentious and protracted litigation on behalf of real estate holding company Park Cattle Co. in litigation against Bill Yung and his Tropicana gaming and holding companies for enforcement of a ground lease for the Horizon Casino Resort in South Lake Tahoe. A two month jury trial resolved two days before Downey Brand’s closing argument when Yung and Tropicana agreed to dismiss their complaints against Park Cattle, return the Horizon property, and pay $165 million in damages, plus interest, to Park Cattle.
  • Downey Brand represented large California school district in litigation over approximately $70 million in new school construction. After overbilling the district millions of dollars, the general contractor abandoned the projects. Downey Brand successfully mediated all 13 of the subcontractor claims brought against the district as a result of the general contractor’s conduct, and brought claims against the general contractor, its principals, an assistant superintendent of the district, and the general contractor’s accountants. The California Attorney General issued numerous criminal indictments against the general contractor’s management team and a school district assistant superintendent based on the ground work laid by the Downey Brand litigation team.
  • In a bet-the-company suit against its client’s direct competitor for copyright infringement and trade secret misappropriation of proprietary source code, Downey Brand represented AtPac, Inc., a leading supplier of database software used by Clerk-Recorder offices throughout California. When AtPac filed suit against its much larger competitor and a governmental entity, they hired intellectual property specialists from Los Angelis to handle their defense. Through tenacious discovery efforts, Downey Brand’s litigation team uncovered irrefutable evidence of defendants’ malfeasance, and demonstrated that defendants had failed to comply with their discovery obligations and had destroyed evidence of their wrongdoing. Downey Brand obtained substantial monetary sanctions against the defendants and their counsel, and a critical order requiring that the jury would be instructed on the adverse inference arising from defendants’ destruction of evidence. With the benefit of these hard fought rulings, Downey Brand secured a $1.9 million settlement for AtPac, Inc. on the eve of trial.
  • At the conclusion of a three week jury trial in Sacramento County Superior Court, jury returned a complete defense verdict for Downey Brand’s clients, real estate developers Charles Somers and Ron Alvarado, who were sued by AKT Development Corporation for fraud, breach of contract and breach of fiduciary duty regarding an alleged joint venture to purchase significant development property near Sacramento.

Speaking Engagements / Events

1 related items