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Owner Lawsuit Alleging Cracked Cement, Unlevel floors, and a Staircase Too High—Contractor Pays Zero

Berliner Cohen is armed with veteran construction and development lawyers. Their skills proved beneficial once again when the Contractor prevailed and was able to recover attorney fees. The project at issue involved interior improvements to a multimillion dollar penthouse condominium in downtown San Francisco.  Owner hired Contractor to install decorative cement flooring, floating stairs and other improvements. Contractor had advised Owner orally and in writing that the floors might crack given the nature of the product used and the application in a high-rise condominium. Owner took assurances from others and proceeded with the installation. Unhappy with the results, Owner filed an action claiming almost $500,000 in total damages, plus attorneys’ fees, alleging the concrete overlay exhibited micro-cracking, the stairs were a half-inch short on required headroom (79½” instead of 80”), and the floor was not level.

Attorney John Domingue, a Partner at Berliner Cohen, represented Contractor. Mr. Domingue attempted to negotiate reasonable solutions to all the issues even though Contractor did not cause them.  Owner rejected all these solutions and pursued a better result through litigation.  At trial, extensive testimony was given by numerous witnesses and experts on both sides.  Under cross-examination and supporting testimony elicited by Mr. Domingue, the evidence weighed in Contractor’s favor.  Contractor prevailed on every one of Owner’s claims and received an award for $120,000 in attorneys’ fees.  The case highlights the important of ensuring you have a sound contract in the first instance, and that you engage legal counsel early, as the Court was swayed by the efforts prior to litigation to resolve the matter.



John Domingue practices in the areas of litigation, with a focus on high-level business and real estate cases. John has notable deposition, law and motion, and trial experience, as well as experience in negotiating settlements without litigation. If you have any questions, please contact John Domingue at or (408) 286-5800.

Berliner Cohen is one of the largest and oldest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  Berliner Cohen also meets the growing demands of the Northern San Joaquin Valley with its expanding offices in Modesto and Merced.  For over 40 years, the Firm has developed the special expertise required by a diverse client base consisting of nationally recognized business interests and a number of Silicon Valley’s largest national and multinational corporations, new ventures, leading real estate developers and brokerages, cutting-edge technology companies, agribusiness, healthcare and other service providers, banking and financial institutions, employers, municipalities, public agencies, and individuals.